Order Code RL32458
CRS Report for Congress
Received through the CRS Web
Historical Patterns and Lessons
July 9, 2004
Senior Specialist in Separation of Powers
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
Military Tribunals: Historical Patterns and Lessons
After the terrorist operations of September 11, 2001, President George W. Bush
authorized the creation of military tribunals to try individuals who offered assistance
to the attacks on New York City and Washington, D.C. The military order issued by
President Bush closely tracks the model established by President Franklin D.
Roosevelt for a military tribunal appointed in 1942 to try eight German saboteurs.
In Ex parte Quirin (1942), the Supreme Court unanimously upheld the jurisdiction
of Roosevelt’s tribunal (also called “military commission”).
This report summarizes the types of military tribunals that have functioned from
the Revolutionary War to the present time, explaining the legislative enactments that
have guided these tribunals and the judicial decisions that have reviewed their
constitutionality. One of the principal methods of legislative control over military
trials, including tribunals, are the Articles of War that Congress enacts into law. The
Constitution vests in Congress the power to “constitute Tribunals inferior to the
supreme Court,” to “make rules for the Government and Regulation of the land and
naval Forces,” and to “define and punish Piracies and Felonies committed on the high
Seas, and Offences against the Law of Nations.” By enacting Articles of War,
Congress defined not only the procedures but also the punishments to be applied to
the field of military law.
At various times, executive officials have claimed that the President has
authority under the Constitution to create military tribunals and does not depend on
statutory authorization. The Supreme Court has never accepted that argument.
Instead, it looks for implied or express statutory authority when upholding military
tribunals. On a number of occasions, federal courts have expressed concern that
military tribunals enable an administration to exercise all three powers of government
— legislative, executive, and judicial — and that the concentration of those powers
threatens individual rights and liberties.
For other CRS reports on military tribunals, see CRS Report RL31191,
Terrorism and the Law of War: Trying Terrorists as War Criminals before Military
Commissions, by Jennifer Elsea; CRS Report RL31600, The Department of Defense
Rules for Military Commissions: Analysis of Procedural Rules and Comparison with
Proposed Legislation and the Uniform Code of Military Justice, by Jennifer Elsea;
and CRS Report RL31340, Military Tribunals: The Quirin Precedent, by Louis
This report will be updated as events warrant.
Articles of War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Founding Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Andrew Jackson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Martial Law in New Orleans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
The Seminole War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The Mexican War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Scope of Executive Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
The Civil War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Suspending Habeas Corpus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Martial Law in Missouri . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Laws Recognizing Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
The Dakota Trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
John Merryman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Clement Vallandigham . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
The Milligan Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Other Judicial Rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Captain Henry Wirz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Conspirators of Lincoln’s Assassination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Clemency for Surratt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Samuel A. Mudd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
From the Civil War to World War II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
The Nazi Saboteur Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Why a Tribunal? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Interlude in Civil Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
The Per Curiam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
The Full Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Evaluating the Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Another Submarine in 1944 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Other World War II Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Martial Law in Hawaii . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Trials of Three Japanese Leaders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Command Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
The Eisentrager Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Placing Limits on Military Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Historical Patterns and Lessons
After the terrorist acts of September 11, 2001, President George W. Bush
authorized the creation of military tribunals to try individuals who gave assistance
to the attacks on New York City and Washington, D.C. The military order issued by
President Bush closely traced the model established by President Franklin D.
Roosevelt, who appointed a military tribunal in 1942 to try eight German saboteurs.
In Ex parte Quirin (1942), the Supreme Court unanimously upheld the jurisdiction
of Roosevelt’s tribunal.
This report summarizes the types of military tribunals that have functioned from
the Revolutionary War to the present time, explaining the legislative enactments that
have guided these tribunals and the judicial decisions that have reviewed their
constitutionality. One of the principal methods of legislative control over military
trials, including tribunals, are the Articles of War that Congress enacts into law. The
Constitution vests in Congress the power to “constitute Tribunals inferior to the
supreme Court,” to “make rules for the Government and Regulation of the land and
naval Forces,” and to “define and punish Piracies and Felonies committed on the high
Seas, and Offences against the Law of Nations.” By enacting Articles of War,
Congress defined not only the procedures but also the punishments to be applied to
the field of military law.
Articles of War
During the War of Independence, the Continental Congress in 1775 enacted
Articles of War to specify procedures and punishments for the field of military law.1
It established standards to deal with mutiny, sedition, insubordination, desertion, and
assistance to enemies, all to be judged and punished by court-martial. The
Continental Congress promulgated these standards in advance by legislation, rather
than leave them to the discretion and judgment of military commanders or executive
When America issued its Declaration of Independence on July 4, 1776, it
identified “a long train of abuses and usurpations” and charged King George III with
“affect[ing] to render the Military independent of and superior to the Civil Power.”
Through this indictment the colonies set forth the principle that military commanders
were at all times subordinate to legislative bodies, including specifications set forth
in the Articles of War and any arrangement for military tribunals.
2 Journals of the Continental Congress 111-23 (1905).
During the War of Independence, both England and the United States depended
on military courts to deal with spies. The Continental Congress adopted a resolution
on August 21, 1776, stating that all persons not owing allegiance to America, “found
lurking as spies in or about the fortifications or encampments of the armies of the
United States,” shall suffer death or punishment by sentence of a court-martial.2 A
month later, the British apprehended Capt. Nathan Hale of the Continental Army,
who was behind British lines on Long Island. Hale had been dressed in civilian
clothes and carried documents concerning British fortifications. Found guilty by a
military court, he was hanged.3
The Articles of War were at first borrowed largely from British precedents, but
Congress continued to reenact and modify them. The Continental Congress adopted
amendments to the Articles, including the requirement that no sentence of a general
court-martial could be executed until a report was first made to Congress, the
Commander in Chief, or the continental general commanding in the state.4 As to
making changes in the military code, General George Washington advised Congress
on December 8, 1779, that any alteration “can only be defined and fixed by
Congress.”5 To that end he submitted recommendations to Congress to encourage
In 1780, American soldiers apprehended a British spy, Major John André, who
had met with the American general Benedict Arnold after maintaining a secret
correspondence with him. At the time, Arnold was commandant at West Point and
was willing to betray his country and surrender the fort for £20,000. When André
was captured, he had in his boots papers (in Arnold’s handwriting) concerning West
Point. By substituting civilian clothes for his military uniform, André’s appearance
“in a disguised habit” put him in the category of a spy.6 With no civil court capable
of prosecuting him for this offense, he was appropriately tried by a military tribunal.
Spying is typically an offense against the nation, not an individual state, and spies can
be prosecuted before a military rather than a civil court.
André argued that he should be treated as a prisoner of war, not a spy, because
he came to Arnold under a flag of truce and obeyed orders that Arnold had a right to
give. Flags do not, however, sanction treason or spying, and André’s argument that
he came in legally was contradicted by his decision to change from his officer’s
uniform to civilian clothes and to adopt an assumed name.7
5 Journals of the Continental Congress 693.
“Brief for the Respondent,” United States ex rel. Ernest Peter Burger [Ex parte Quirin],
39 Landmark Briefs and Arguments of the Supreme Court of the United States:
Constitutional Law 472 (Philip B. Kurland and Gerhard Casper eds. 1975) (hereafter
7 Journals of the Continental Congress 264-65.
17 The Writings of George Washington 239 (John C. Fitzpatrick ed. 1931).
20 The Writings of George Washington 101.
James Thomas Flexner, The Traitor and the Spy: Benedict Arnold and John André 384
Washington designated a board of officers to try André. The board, consisting
of 14 officers, was assisted by the Judge Advocate. After hearing the case, the board
recommended that André be sentenced to death, and he was hanged on October 2,
Following its independence from Britain, America adopted the fundamental
principle that the operation of military tribunals flowed from legislative judgments
reached by the people’s representatives. After ratification of the Constitution, one
of the first duties of the new Congress was to pass legislation in 1789 to establish
rules for the military. Vesting rulemaking authority in Congress marked a dramatic
break with English precedents. British kings were accustomed to issue, on their own
authority, Articles of War and military rules.8
Under Section 8 of Article I of the Constitution, Congress is empowered to
“make rules for the Government and Regulation of the land and naval Forces.” The
delegates at the Constitutional Convention understood that the language was being
picked up bodily “from the existing Articles of Confederation.”9 Joseph Story, who
served on the Supreme Court from 1811 to 1845, explained that the power of
Congress to make rules for the military is “a natural incident to the preceding powers
to make war, to raise armies, and to provide and maintain a navy.”10 He noted that
in Great Britain the king, “in his capacity of generalissimo of the whole kingdom, has
the sole power of regulating fleets and armies.”11 Story continued: “The whole power
is far more safe in the hands of congress, than in the executive; since otherwise the
most summary and severe punishments might be inflicted at the mere will of the
Legislation in 1789 stated that military troops “shall be governed by the rules
and articles of war which have been established by the United States in Congress
assembled, or by such rules and articles of war, as may hereafter by law be
established.”13 This language incorporated the Articles of War previously adopted
by the Continental Congress and gave notice that Congress, under its constitutional
authority, would legislate as necessary in the future.
Congress retained the provisions of the Continental Congress rules until
changing conditions forced new legislation. On January 13, 1804, the House
William Winthrop, Military Law and Precedents 18-19 (1920).
2 The Records of the Federal Convention of 1787, at 330 (Max Farrand ed. 1937)
Joseph Story, Commentaries on the Constitution of the United States 418 (Ronald D.
Rotunda and John E. Nowak eds. 1987).
1 Stat. 96, sec. 4 (1789).
appointed a committee “to revise the rules and articles for the government of the
Army of the United States.”14 Legislative debate was quite brief, giving one Member
an opportunity to successfully challenge language that sought to punish military
officers or soldiers who used “traitorous or disrespectful words” against the
President, the Vice President, Congress, the Chief Justice, or state legislatures.15 No
further action was taken until November 30, when the House again appointed a
committee to revise the rules and articles of the army.16 A new bill, reported on
December 12, passed the House on December 17 after the adoption of several
The bill was referred to a Senate committee, reported with amendments, and
debated on the floor.18 Senator John Quincy Adams found the bill to be too long and
with numerous defects, including language that was “scarcely intelligible, or liable
to double and treble equivocation.”19 He insisted that the bill be read in stages,
paragraph by paragraph. The chairman of the reporting committee took great offense
to this procedure. Late in the afternoon, a motion was made to recommit the bill to
a select committee, but not to the one that reported it. On January 25, 1805, the
amended bill was referred to a committee of three, chaired by Adams.20 He reported
the bill for floor action, but further consideration awaited the next session of
On December 6, 1805, Representative Joseph B. Varnum reminded the House
that the rules and regulations for the army “had never been revised since the era of
the present Government; and that consequently the rules and regulations established
during the Revolutionary war still continued in force, though our circumstances had
materially changed.”22 The House appointed a committee of seven to prepare a bill,
which was reported on December 18.23 This time the bill, after House and Senate
amendments, was agreed to by Congress and submitted to the President.24
The bill, enacted on April 10, 1806, consisted of 101 Articles of War. Many of
the provisions define the punishments and procedures to be followed by courtsmartial. The statute, reflecting the André precedent, provided that in time of war “all
Annals of Cong., 8th Cong. 882 (1804).
Id. at 1190-91.
Annals of Cong., 8th Cong., 2nd sess. 726 (1804).
Id. at 808, 835-36, 858-59.
Id. at 27, 33, 42.
1 Memoirs of John Quincy Adams 338 (1874).
Annals of Cong., 8th Cong., 2nd sess. 42.
Id. at 64, 66.
Annals of Cong., 9th Cong., 1st sess. 264 (1805).
Id. at 294.
House action at 326-27, 332-33, 337-38, 339, 729, 760, 838, 849, 878; Senate action at
48, 143, 163, 167, 181-82, 200-01, 207, 210.
persons not citizens of, or owing allegiance to the United States of America, who
shall be found lurking as spies, in or about the fortifications or encampments of the
armies of the United States, or any of them, shall suffer death, according to the laws
and usages of nations, by sentence of a general court martial.”25 The sentence of
death for spies was well known by all nations and particularly by the Nazi saboteurs
who made their way to American shores with parts of a German uniform. In case
they were captured they could claim the right to be treated not as spies but as
prisoners of war.26
The War of 1812 underscored the urgent need for Congress to clarify the
procedures for courts-martial. President James Madison, in his Fifth Annual
Message on December 7, 1813, recommended that Congress prepare “a revision of
the militia laws.”27 The House referred the part of the President’s message relating
to militia laws to a select committee, and the committee reported legislation on
February 15, 1814.28 The two Houses produced a compromise measure that when to
the President for his signature.29
Congress reentered the field of military law in 1830 to correct a conflict of
interest problem with courts-martial. Similar problems would emerge later with
military tribunals. Maj. Gen. Alexander Macomb brought charges against Col. Roger
Jones, Adjutant General of the Army, for issuing special orders and publishing
material in the Army Register without first receiving Macomb’s review and
approval.30 Not only did Macomb bring the charges, he appeared before the courtmartial as the principal prosecution witness and later approved the proceedings that
decided on a reprimand for Jones.31
Congress found the procedure so open to abuse that it amended the Articles of
War to prevent future repetitions. Article 65, as adopted in 1806, authorized any
general officer commanding an army to appoint general courts-martial. Only in cases
of loss of life or the dismissal of a commissioned officer would the proceedings be
transmitted to the Secretary of War, to be laid before the President for confirmation
or approval. All other sentences could be confirmed and executed by the officer who
ordered the court to assemble.32 The general or colonel ordering the court could
2 Stat. 371 (Art. 101(2)).
Louis Fisher, Nazi Saboteurs on Trial: A Military Tribunal & American Law 23 (2003).
2 A Compilation of the Messages and Papers of the Presidents 523 (James D. Richardson
ed. 1925) (hereafter “Richardson”).
Annals of Cong., 13th Cong., 1st sess. - 2nd sess. 785, 1431 (1813).
3 Stat. 134 (1814).
H. Doc. No. 104, 21st Cong., 1st sess. 3-4, 10-11, 14 (1830).
Id. at 10-12, 45. The material in the House document also appears at 4 American State
Papers: Military Affairs 450-78 (1860).
2 Stat. 367 (1806).
become the accuser and prosecutor, able to select officers hostile to the accused or
personally attached to him.33
Congress enacted legislation to provide that whenever a general officer is “the
accuser or prosecutor” of any officer under his command, “the general court-martial
for the trial of such officer shall be appointed by the President of the United States.”34
This statute corrected the conflict of interest within the military but not within the
executive branch. For example, in the Nazi saboteur case of 1942, President Franklin
D. Roosevelt issued a military order and proclamation to create a military tribunal,
appointed the generals who served on the tribunal, and appointed the prosecutors (the
Attorney General and the Judge Advocate General) and the colonels who served as
defense counsel. All of those officials were subordinate to the President. After the
tribunal completed its deliberations and reached a verdict, the court transcript then
went to Roosevelt as the final reviewing authority.
During the nineteenth century, Congress had to contend with initiatives taken
by several generals (Andrew Jackson and Winfield Scott) who decided it was
necessary on their own authority to create military tribunals. During the Civil War
there was particularly heavy use of tribunals, leading to several important judicial
General Andrew Jackson resorted to military tribunals on two occasions: during
the War of 1812 and while commanding troops in Florida in 1818. Both exercises
of authority were highly controversial and led to responses by federal courts and
Martial Law in New Orleans
During the War of 1812, Jackson invoked martial law when he commanded
American forces at New Orleans. On December 15, 1814, anticipating a British
invasion of the city, he issued a statement alerting residents to “his unalterable
determination rigidly to execute the martial law in all cases which may come within
his province.”35 The general order for martial law was released the next day,
requiring anyone entering the city to report to the Adjutant General’s office. Anyone
found in the streets after 9 p.m. “shall be apprehended as spies and held for
Cong. Debates, 21st Cong., 1st sess. 575 (1830) (remarks by Rep. William Drayton).
4 Stat. 417 (1830).
3 The Papers of Andrew Jackson 205 (Harold D. Moser ed. 1991).
Id. at 206-07. See also Robert V. Remini, The Battle for New Orleans: Andrew Jackson
and America’s First Military Victory 57-59 (2001 paper ed.).
After Jackson’s victory over the British, the citizens of New Orleans expected
him to rescind the order for martial law. However, Jackson continued to wait until
he received word that peace negotiations underway at Ghent were complete. An
article in the local newspaper by Louis Louallier insisted that persons accused of a
crime should be heard before a civil judge, not military tribunals, and called
Jackson’s policy “no longer compatible with our dignity and our oath of making the
Constitution respected.”37 Jackson had him arrested on March 5, 1815, for inciting
mutiny and disaffection in the army. Louallier’s lawyer went to U.S. District Judge
Dominick Augustin Hall to request a writ of habeas corpus, which the judge granted
after concluding that martial law could no longer be justified.
Jackson directed his military officers that “should any person attempt by serving
a writ of Habeas corpus” for Louallier, that person was to be arrested and confined.38
Claiming that Judge Hall had engaged “in aiding abetting and exciting mutiny within
my camp,” Jackson ordered his arrest and confinement.39 Hall found himself locked
up in the same barracks as the writer.40
A court-martial acquitted Louallier, in part because he challenged the
jurisdiction of the court to try someone who was not a member of the militia or the
army. As to the charge of spying, the court considered it a stretch that a spy would
publish his views in a newspaper that circulated in Jackson’s camp. Jackson
disagreed with the acquittal and kept Louallier in jail. As for Judge Hall, Jackson
decided that the military court was unlikely to convict a federal judge and simply
ordered Hall out of the city, not to return until the official announcement of peace or
until the British left the southern coast.41 On March 12, 1815, Jackson’s troops
marched Hall four miles outside of New Orleans and left him there. On the
following day, after official confirmation of the peace treaty arrived, Jackson revoked
martial law and released Louallier.42
Judge Hall returned to the city and waited a few days for the celebrations to
subside. On March 22, he ordered Jackson to appear in court to show why he should
not be held in contempt for refusing to obey the court’s writ of habeas corpus and for
Robert V. Remini, Andrew Jackson and the Course of American Empire, 1767-1821, at
310 (1977). There are a variety of spellings: Louallier, Louiallier, and Louailler. The first
appears to be more reliable because of contemporary usage. See Henry P. Dart, ed.,
“Andrew Jackson and Judge D. A. Hall,” 5 La. Hist. Q. 509, 538-45 (1922).
2 Correspondence of Andrew Jackson 183 (letter to Lt. Col. Mathew Arbuckle, March
Remini, Andrew Jackson and the Course of American Empire, at 310.
2 Correspondence of Andrew Jackson 189 (letter to Capt. Peter Ogden, March 11, 1815,
and order to Judge Hall, March 11, 1815).
3 Papers of Andrew Jackson 310; Remini, Andrew Jackson and the Course of American
having imprisoned Hall.43 Jackson appeared with an aide, submitted a written
statement why he was not in contempt, and withdrew. He also returned to the court
on March 31 to answer interrogatories. After further proceedings, Hall fined Jackson
$1,000, which Jackson paid.44
Congress later passed legislation to remit the fine imposed on Jackson. A bill
for that purpose was initially introduced on March 10, 1842.45 President John Tyler
urged Congress to pass the bill.46 Some versions of the bill were drafted to avoid any
possible reproach on Judge Hall, such as by stating that “nothing herein contained
shall be intended to be so construed as to imply any censure upon the judge who
imposed said fine, or in any way to question the propriety of his decision in said
case.”47 Qualifications of that nature, however, were removed from the bill that
became law in 1844.48 Debate on the bill was extensive because lawmakers differed
sharply on whether more credit was due to Jackson for defending the city or to Hall
for defending the Constitution.49
The Seminole War
In 1818, while commanding troops in the Seminole War, General Jackson again
turned to a military tribunal. This time the trial involved two British subjects,
Alexander Arbuthnot and Robert Christy Ambrister, charged with inciting and aiding
the Creek Indians to war against the United States. Arbuthnot was also charged with
acting as a spy and inciting the Indians to murder two men. He pleaded not guilty to
all charges, while Ambrister pleaded not guilty to aiding and abetting the Creeks but
guilty with justification to the charge that he led and commanded the Lower Creeks
in carrying on a war against the United States.50
The “special court” consisted of eleven officers, headed by Maj. Gen. Edmund
P. Gaines. Arbuthnot asked for legal representation and was granted counsel; the
record does not indicate whether Ambrister requested counsel or was granted one.
Dart, “Andrew Jackson and Judge D. A. Hall,” at 545.
3 Papers of Andrew Jackson 332, 342-43; John Spencer Bassett, The Life of Andrew
Jackson 228-29 (1931). For other accounts of the contempt proceedings, see John Reid and
John Henry Eaton, The Life of Andrew Jackson 384-90 (1817) and Jonathan Lurie,
“Andrew Jackson, Martial Law, Civilian Control of the Military, and American Politics: An
Intriguing Amalgam,” 126 Mil. L. Rev. 133 (1989).
Cong. Globe, 27th Cong., 2nd sess. 304 (1842).
5 Richardson 2062.
Cong. Globe. 28th Cong., 1st sess. 87 (1843).
5 Stat. 651 (1844).
E.g, statement by Rep. Alexander H. Stephens, Cong. Globe, 28th Cong., 1st Sess. 87
(1843). For the debate, see id. at 18, 87-96, 111-15, 117-20, 206, 230, 245, 250-51, 263,
267-69, 274, 278. Also, see the separate floor statements in the Appendix to the
Congressional Globe, 28th Cong., 1st Sess. 26-28, 32-37, 43-48, 58-63, 88-89, 112-13, 145,
194-96, 206-11, 226-30 (1844).
1 American State Papers: Military Affairs 721, 731 (1832).
In the trial of Arbuthnot, the court heard from three witnesses for the prosecution and
accepted a number of documents to be entered into the record. After Arbuthnot or
his attorney cross-examined two of the witnesses, the court found him guilty of all
charges except “acting as a spy.” By a two-thirds majority, the court sentenced him
to “be suspended by the neck until he is dead.”51
Ambrister’s trial was conducted in similar fashion, with the court finding him
guilty on most charges but not guilty on one of the specifications. He was sentenced
“to suffer death by being shot, two-thirds of the court concurring therein.” One of
the members of the court requested reconsideration of his vote on the sentence,
forcing a revote. The court then decided to sentence Ambrister to “receive fifty
stripes on his bare back” and be confined with ball and chain to hard labor for twelve
months.52 Jackson overrode the court and directed that Ambrister be shot, an order
that was carried out.
In his State of the Union Message on November 16, 1818, President James
Monroe made reference to the trial of Arbuthnot and Ambrister and forwarded a
number of documents to Congress related to the case.53 The following year, the
House Committee on Military Affairs issued a report highly critical of the trials. The
committee could find “no law of the United States authorizing a trial before a
military court for offenses such as are alleged” against the two men, except that of
“acting as a spy,” for which Arbuthnot was found not guilty.54 It acknowledged that
the law of nations recognized that “where the war is with a savage nation, which
observes no rules, and never gives quarter, we may punish them in the persons of any
of their people whom we may take, (these belonging to the number of the guilty,) and
endeavor, by this rigorous proceeding, to force them to respect the laws of humanity;
but wherever severity is not absolutely necessary, clemency becomes a duty.”
Having examined the documentation, the committee was unable to find “a shadow
of necessity for the death of the persons arraigned before the court.”55
In looking through the general order of April 29, 1818, issued by Jackson for the
executions, the committee discovered “this remarkable reason” to justify the deaths:
“It is an established principle of the law of nations, that any individual of a nation,
making war against the citizens of another nation, they being at peace, forfeits his
allegiance, and becomes an outlaw and a pirate.” The committee associated piracy
with actions on the high seas, over which Jackson’s military court would have no
jurisdiction. The committee found similar difficulty in applying the charge of
Id. at 730.
Id. at 734.
2 Richardson 612. These documents are reprinted in Annals of Cong., 15th Cong., 2nd
sess., starting at page 2136.
1 American State Papers: Military Affairs 735.
“outlaw” to Arbuthnot and Ambrister, for that term “applies only to the relations of
individuals with their own Government.”56
The committee called particular attention to the execution of Ambrister, “who,
after having been subjected to a trial before a court which had no cognizance or
jurisdiction over the offences charged against him, was shot by order of the
commanding general [Jackson], contrary of the forms and usages of the army, and
without regard to the finding of that court, which has been instituted as a guide for
himself.” The committee also criticized the military court that tried the two men: “A
court-martial is a tribunal erected with limited jurisdiction, having for its guidance
the same rules of evidence which govern courts of law; and yet Ambuthnot is refused
by the court-martial, before whom he was on trial for his life, the benefit of
Ambrister, who had not been put upon his trial at that time, and whose evidence
would have been received by any court of law, as legal, if not credible.” The
committee further rebuked the court for allowing a leading question to one of the
witnesses for the prosecution, William Hambly. By allowing this question and
response, the court relied on an expression of opinion and belief rather than a
statement of facts, “upon which alone could the court act.” Hearsay evidence “in a
case of life and death,” the committee said, “was never before received against the
accused in any court of this country.”57
Having completed this evaluation, the committee disapproved the proceedings
in the trial and execution of Arbuthnot and Ambrister. A minority report from the
committee largely defended Jackson’s actions, discovering “much which merits
applause, and little that deserves censure.” It faulted Jackson only for not accepting
the judgment of the military court, which first sentenced Ambrister to be shot but
later changed that to corporal punishment and confinement at hard labor. Jackson
disapproved the change and ordered the execution. To the minority, it would have
been “more correct for General Jackson, after submitting his case to a court-martial,
not only to examine the facts as to his guilt, but to determine the punishment to be
inflicted,” thus acquiescing in the court’s final decision.58
In 1819, the House drafted a resolution to disapprove the “proceedings in the
trial and execution” of Arbuthnot and Ambrister.59 After almost a month of debate,
the resolution to censure Jackson was rejected in the Committee of the Whole by a
vote of 54 to 90. The full House concurred with that judgment, voting 108 to 62 to
support the trial and execution of Arbuthnot, and 107 to 63 to support the trial and
execution of Ambrister.60
Id. at 739. The committee report also appears at Annals of Cong,. 15th Cong., 2d Sess.
515-27 (1819). The trial material, in the form printed in the American State Papers, was
first published as The Trials of A. Arbuthnot & R. C. Ambrister, Charged with Exciting the
Seminole Indians to War Against the United States of America (1819).
Annals of Cong., 15th Cong., 2d Sess. 583 (1819).
Id. at 1132, 1136.
Jackson then faced a critical Senate report issued on February 24, 1819 by a
select committee created to examine the conduct of the Seminole War. In reviewing
the executions of Arbuthnot and Ambrister, the committee said it “cannot but
consider it as an unnecessary act of severity, on the part of the commanding general,
and a departure from that mild and humane system towards prisoners, which, in all
our conflicts with savage or civilized nations, has heretofore been considered, not
only honorable to the national character, but conformable to the dictates of sound
policy.” As prisoners of war and subjects of a country “with whom the United States
are at peace,” the two men were entitled to be treated at least on a par with Indians.
“No process of reasoning,” said the committee, “can degrade them below the savages
with whom they were connected.” The committee further noted: “Humanity
shudders at the idea of a cold-blooded execution of prisoners, disarmed, and in the
power of the conquerer.” The committee rejected the theory that Arbuthnot and
Ambrister were “outlaws and pirates,” and pointed out that Jackson, having created
a military court to try them, set aside the sentence of whipping and confinement “and
substituted for that sentence his own arbitrary will.”61 The Senate adjourned sine die
on March 3 without taking action on the committee report.
Experts in military law have differed on the legitimacy of Jackson’s action.
William Winthrop, writing toward the end of the nineteenth century, noted that if any
officer ordered an execution in the manner of Jackson he “would now be indictable
for murder.”62 To William Birkhimer, in his 1904 treatise, Jackson had asked the
special court only for its opinion, both as to guilt and punishment, and the delivery
of that opinion could not divest Jackson of the authority he possessed from the
beginning: to proceed summarily against Arbuthnot and Ambrister and order their
execution.63 Birkhimer’s analysis would allow generals to execute civilians without
trial or to dispense with the fact-finding and judgment that results from trial
The Mexican War
Military tribunals were used by General Winfield Scott during the war against
Mexico, when American forces found themselves in a foreign country without a
reliable judicial system to try offenders. He was concerned particularly about the
lack of discipline and misconduct among American volunteer soldiers. Before he left
Washington, D.C., to assume command, he drafted an order calling for martial law
in Mexico for both American soldiers and Mexican citizens. He showed the draft
order to Secretary of War William Marcy and Attorney General Nathan Clifford.
Neither official expressed disapproval or opposition.64 Marcy turned to Congress to
S. Doc. No. 100, 15th Cong., 2nd sess. 11-12 (1819). This committee report is reprinted
at Annals of Cong., 15th Cong., 2nd sess. 256-68 (1819). The language quoted in this report
appears on page 267.
Winthrop, Military Law and Precedents 465 (italics in original).
William E. Birkhimer, Military Government and Martial Law 354 (1904).
Timothy D. Johnson, Winfried Scott: The Quest for Military Glory 165 (1998).
recommend legislation that would authorize a military tribunal, but lawmakers
declined to act.65
Scott knew from military history that lawless and undisciplined action by
American soldiers in Mexico would invite and incite guerrilla uprisings. He was
familiar with the mistakes of French soldiers, under Napoleon’s command, when they
invaded Spain. Reacting to their record of plunder and rape, Spanish residents
revolted and sparked a cycle of violence and atrocities. Scott intended to enforce
discipline across the board to avert guerrilla war. He designed the martial law order
to guarantee Mexican property rights and to recognize the sanctity of religious
On February 19, 1847, General Scott issued General Orders No. 20, proclaiming
a state of martial law at Tampico. Certain specified acts committed by civilians or
military persons would be tried before military tribunals. He was particularly
concerned about the behavior of “the wild volunteers” who, as soon as they crossed
the Rio Grande, “committed, with impunity, all sorts of atrocities on the persons and
property of Mexicans.”67 Scott could discover “no legal punishment for any of those
offences, for by the strange omission of Congress, American troops take with them
beyond the limits of their own country, no law but the Constitution of the United
States, and the rules and articles of war.” Those legal standards “do not provide any
court for the trial and punishment of murder, rape, theft, &c., &c. — no matter by
whom, or on whom committed.”68
Scott never questioned the ultimate authority of Congress to control military
tribunals. To “suppress these disgraceful acts abroad,” he issued the martial law order
“until Congress could be stimulated to legislate on the subject.”69 Under his order,
“all offenders, Americans and Mexicans, were alike punished — with death for
murder or rape, and for other crimes proportionally.”70 His order also provided for
a special American tribunal “for any case to which an American might be a party.”71
Scott said that his order “worked like a charm; that it conciliated Mexicans;
intimidated the vicious of the several races, and being executed with impartial rigor,
gave the highest moral deportment and discipline ever known to an invading army.”72
Scott sought clarifying authority from Congress but was unsuccessful. Four
days before proclaiming martial law, Marcy wrote to Scott that it was not reasonable
to expect enactment of an additional Article of War “giving authority to military
2 Justin H. Smith, The War With Mexico 220 (1919).
Johnson, Winfield Scott, at 166-68.
2 Memoirs of Lieut.-General Scott 392 (1864).
Id. at 393.
Id. at 395.
Id. at 396.
tribunals to try and punish certain offences not expressly embraced in the existing
articles.” Marcy had discussed the matter with the chairman of a Senate committee
and was advised that the chairman, after considering the matter, saw no need for
legislation. The right to punish for such offences “necessarily resulted from the
condition of things when an army is prosecuting hostilities in an enemy’s country.”73
The martial law order represented a blend of executive initiative and statutory
authority. The first paragraph stated that in the war between the United States and
Mexico there were “many grave offences, not provided for in the act of Congress
‘establishing rules and articles for the government of the armies of the United
States,’” enacted in 1806.74 A supplemental code, he said, “is absolutely needed.”75
He called this “unwritten code” martial law, “an addition to the written military code,
prescribed by Congress in the rules and articles of war.”76 All offenders “shall be
promptly seized, confined, and reported for trial, before military commissions, . . .
appointed, governed, and limited, as nearly as practicable, as prescribed by the 65th,
66th, 67th, and 97th, of the said rules and articles of war.”77 Scott’s order
distinguished between the competing jurisdictions of military tribunals and courtsmartial. No tribunal “shall try any case clearly cognizable by any court martial.”78
Scott also looked to state policy to limit the reach of his order. No sentence of
a tribunal “shall be put in execution against any individual belonging to this army,
which may not be, according to the nature and degree of the offence, as established
by the evidence, in conformity with known punishment, in like cases, in some one
of the States of the United States of America.”79 Furthermore, any punishment for
the sale, waste or loss of ammunition, horses, arms, clothing “or accoutrements” by
soldiers would be governed by Articles of War 37 and 38.80
The Supreme Court reviewed and overturned some of the actions taken by
military authorities during the Mexican War. As Commander in Chief, the President
“is authorized to direct the movements of the naval and military forces placed by law
at his command, and to employ them in the manner he may deem most effectual to
harass and conquer and subdue the enemy.”81 The Court thus looked to legislation
to define the limits of presidential power in time of war. The President “may invade
the hostile country, and subject it to the sovereignty and authority of the United
States. But his conquests do not enlarge the boundaries of the Union, nor extend the
operation of our institutions and laws beyond the limits before assigned to them by
H. Exec. Doc. No. 56, 30th Cong., 1st sess. 63-64 (1848).
2 Memoirs of Lieut.-General Scott 540-41.
Id. at 542.
Id. (emphasis in original).
Id. at 544.
Fleming v. Page, 9 How. (50 U.S.) 603, 615 (1850) (emphasis added).
the legislative power.”82 The Court overturned actions in Mexico by military officers
who seized private property,83 and it limited the right of the President or military
officers to create courts outside the United States.84
Scope of Executive Authority
Throughout the first seven decades of the American republic, executive officials
recognized that the ultimate constitutional authority to create and regulate military
tribunals lay with Congress, not the President. Macomb, in his 1809 treatise on
martial law, warned that the President or commanding officer “can no more interfere
with the procedure of Courts-Martial, in the execution of their duty, than they can
with any of the fixed courts of justice.”85 Through the power of pardon, the President
may “entirely remit the punishment” decided by a court-martial, “but he can no more
decree any particular alteration of their sentence, than he can alter the judgment of
a civil court, or the verdict of a jury.”86 Constitutionally, the President could lessen
or cancel a sentence but not increase the penalty or rewrite the judgment.
In 1818, Attorney General William Wirt issued a legal memorandum on the
authority needed to order a new trial before a military court. Article of War 87
expressly stated that “no officer, non-commissioned officer, soldier, or follower of
the army, shall be tried a second time for the same offence.”87 During the
proceedings of a court-martial, the Judge Advocate refused to arraign Capt. Nathaniel
N. Hall because he had already been tried by a court-martial on the same charge. The
sentence of the first court had been disapproved by the President.88 The question
presented to Wirt was whether a President “has the right, under these circumstances,
to order a new trial.”89
It is a “clear principle,” reasoned Wirt, that the President “has no powers except
those derived from the constitution and laws of the United State; if the power in
question, therefore, cannot be fairly deduced from these sources, it does not exist at
all.”90 The Constitution made the President Commander in Chief, but
in a government limited like ours, it could not be safe to draw from this provision
inferential powers, by a forced analogy to other governments differently
constituted. Let us draw from it, therefore, no other inference than that, under
Mitchell v. Harmony, 13 How. (54 U.S.) 115, 135 (1851).
Jecker v. Montgomery. 13 How. (54 U.S.) 498, 515 (1852).
Macomb, A Treatise of Martial Law 8-9.
Id. at 9.
2 Stat. 369 (1806).
1 Op. Att’y Gen. 233 (1818).
Id. at 234.
the constitution, the President is the national and proper depositary of the final
appellate power, in all judicial matters touching the policy of the army; but let
us not claim this power for him, unless it has been communicated to him by some
specific grant from Congress, the fountain of all law under the constitution.91
Wirt noted that Congress had granted the President an appellate role over
military trials. A statute enacted in 1802 provided that officers, non-commissioned
officers and other members of the military “shall be governed by the rules and
articles of war, which have been established” by Congress, “or by such rules and
articles as may be hereafter, by law, established.” Nevertheless, any sentence of a
general court-martial “extending to the loss of life, the dismission of a commissioned
officer, or which shall respect the general officer, shall, with the whole proceedings
of such cases, respectively, be laid before the President of the United States, who is
hereby authorized to direct the same to be carried into execution, or otherwise, as he
shall judge proper.”92
To judge the scope of this power, Wirt looked for guidance to the enactments
of the Continental Congress, to British precedents, and to the values that infused the
War of Independence.93 America, projecting a system of rules “on more liberal and
bolder principles in favor of the citizen,” and acting in the spirit of “enlarged views
of human liberty,” could not have “narrowed the rights and privileges of the
American citizen, and surrendered him to a military despotism more severe than that
which they were throwing off.”94 He concluded that it was inappropriate to deny the
President the right to grant a new trial when it would benefit the party accused.95 In
this case, the prisoner expressly asked for a new trial. Wirt offered his opinion that
the President “is vested by the laws with the power of ordering a new trial for the
benefit of the prisoner.”96 The President possessed that discretion “by the laws,” not
by some inherent power. Moreover, the President could not order a new trial if the
accused were acquitted. A new trial is appropriate not when “ordered against him
— it is only for him.”97
The President, as Commander in Chief, exercises authority over the military
services. In an opinion in 1820, Wirt explained that the Departments of War and of
the Navy “are the channels through which his orders proceed to them, respectively,
and the Secretaries of those departments are the organs by which he makes his will
known to them.”98 Through this hierarchical control the President may direct
obedience to his orders, unless Congress has already given contrary orders to
2 Stat. 134, sec. 10 (1802). Wirt inaccurately refers to this as “the 14th section of the
1 Op. Att’y Gen. 235-36
Id. at 237.
Id. at 240.
Id. at 242.
Id. at 241 (emphasis in original).
1 Op. Att’y Gen. 380-81 (1820).
executive officers by statute. Thus, the President may suspend, modify, or rescind
any order issued by military officers, “except where a direct authority has been given
by Congress to an officer to perform any particular function — for example, for a
commanding officer to order courts-martial in certain cases.”99
The Civil War
The heaviest use of military tribunals occurred during the Civil War, after
President Lincoln suspended the writ of habeas corpus and authorized martial law in
several regions. Congress passed legislation to regulate the suspension of the writ,
and federal courts — after the war — imposed limits on tribunals when civil courts
were open and operating.
In April 1861, with Congress in recess, President Lincoln issued proclamations
to call out the state militia, increase the size of the Army and Navy, suspend the writ
of habeas corpus in selected regions, and place a blockade on the rebellious states.100
When Congress assembled in special session on July 4, he explained that the
outbreak of civil war left him no choice but “to call out the war power of the
Government and so to resist force employed for the destruction by force for its
preservation.”101 His measures, “whether strictly legal or not, were ventured upon
under what appeared to be a popular demand and a public necessity, trusting then, as
now, that Congress would readily ratify them.” Lincoln believed that “nothing has
been done beyond the constitutional competency of Congress.”102
In presenting the issue in this manner, Lincoln acknowledged that he had
exercised not only the powers available to the President but also the powers vested
in Congress. Especially was that so by suspending the writ of habeas corpus. The
power to suspend appears in Article I: “The Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion the public
Safety may require it.” Although the power of suspension is in Article I, Lincoln said
that the Constitution “itself is silent as to which or who is to exercise this power; and
as the provision was plainly made for a dangerous emergency, it can not be believed
the framers of the instrument intended that in every case the danger should run its
course until Congress could be called together, the very assembling of which might
be prevented, as was intended in this case, by the rebellion.”103
Having questioned the legality of his actions, Lincoln identified the process
needed to bring his proclamations and orders into harmony with the Constitution: a
statute passed by Congress. Congress debated his request at length, with many
Members eventually supporting Lincoln with the explicit understanding that his acts,
Id. at 381.
7 Richardson 3214-30.
Id. at 3224.
Id. at 3225.
Id. at 3226.
standing alone, were illegal.104 Legislation on August 6 provided that “all the acts,
proclamations, and orders” of President Lincoln after March 4, 1861, respecting the
army and navy and calling out the state militia “are hereby approved and in all
respects legalized and made valid, to the same extent and with the same effect as if
they had been issued and done under the previous express authority and direction of
the Congress of the United States.”105
Suspending Habeas Corpus
The day after Congress assembled in special session, Attorney General Edward
Bates submitted to Lincoln his analysis of the President’s authority to suspend the
privilege of the writ of habeas corpus. From British times, prisoners relied on the
writ to appeal to a judge that they were being unjustly held. Once a judge issued a
writ, the custodian of a prisoner must bring the person before the court and defend
the detention. Bates concluded that in times of “a great and dangerous insurrection,”
the President has discretion to arrest and hold in custody persons “known to have
criminal intercourse with the insurgents, or persons against whom there is probable
cause for suspicion of such criminal complicity.”106 In case of such an arrest, Bates
said, Presidents are justified in refusing to obey a writ of habeas corpus issued by a
Much of Bates’s argument rested on the President’s oath of office to “preserve,
protect and defend the Constitution of the United States.”107 The President could not
defend the Constitution “without putting down rebellion, insurrection, and all
unlawful combinations to resist the General Government.”108 On the manner in
which the insurrection is suppressed “the President must, of necessity, be the sole
judge.”109 Bates conceded that Presidents could abuse this power, in which case they
would be subject “to impeachment and condemnation.”110 Bates qualified his
opinion by saying that if the constitutional language meant “a repeal of all power to
issue the writ, then I freely admit that none by Congress can do it.” The President’s
power to suspend the privilege in times of dangerous rebellion was “temporary and
Both Lincoln and Bates acknowledged congressional power to pass legislation
that defines when and how a President may suspend the writ of habeas corpus during
E.g., remarks by Sen. Breckinridge at Cong. Globe, 37th Cong., 1st sess. 137-42 (1861)
and Sen. Howe, id. at 393.
12 Stat. 326 (1861).
10 Op. Att’y Gen. 74, 81 (1861).
Id. at 82-83.
Id. at 84.
Id. at 85.
Id. at 90.
a rebellion. On March 3, 1863, Congress enacted a bill authorizing the President,
during the rebellion, to suspend the privilege of the writ of habeas corpus “whenever,
in his judgment, the public safety may require it.” And yet Congress placed an
important restriction on the President. The statute directed the Secretary of State and
the Secretary of War, “as soon as may be practicable,” to furnish federal courts with
a list of the names of all persons, “citizens of states in which the administration of the
laws has continued unimpaired in the said Federal courts,” who are held as prisoners
by order of the President or executive officers.112 Failure to furnish the list could
result in the discharge of a prisoner.113 In Ex parte Milligan (1866), the Supreme
Court would rely on this statute to limit executive power.
Martial Law in Missouri
On August 30, 1861, Maj. Gen. John C. Frémont issued a proclamation stating
that circumstances in Missouri were sufficiently urgent to compel him to “assume the
administrative powers of the State” and declare martial law. Persons within a
prescribed territory with weapons in their hands would be tried by court-martial “and
if found guilty will be shot.” His proclamation was directed particularly to those who
attempted to destroy railroad tracks, bridges, or telegraph lines.114 The state of
emergency, he said, was not intended to suspend all of the operations of the civil
Lincoln quickly countermanded Frémont’s proclamation, fearing that the
decision to shoot Confederates would lead to the shooting of Union soldiers. He told
Frémont on September 2 that no one was to be shot without the President’s
consent.116 Lincoln also took sharp exception to language in the proclamation that
threatened to liberate slaves held by traitorous owners. Such a policy, he warned,
“will alarm our Southern Union friends, and turn them against us.”117 There was
great risk that Maryland would join the southern cause.
Military tribunals assembled in September 1861 to consider charges ranging
from the destruction of railroad ties, tracks, railroad cars, and telegraph lines, all of
which fell within the broad category of “the laws of war.”118 On January 1, 1862,
Maj. Gen. Henry W. Halleck said that civil courts “can give us no assistance as they
12 Stat. 755 (1863).
Id. at 756, sec. 3.
2:1 The War of the Rebellion: A Compilation of the Official Records of the Union and
Confederate Armies 221 (1894) (hereafter “War of the Rebellion”). 2:1 stands for Series
II, Vol. I.
Id. at 222.
4 The Collected Works of Abraham Lincoln 506 (Roy P. Basler ed. 1953) (hereafter
2:1 The War of the Rebellion 282-89, 402-05, 407.
are very generally unreliable. There is no alternative but to enforce martial law.”119
On that same day, a general order from Army headquarters in St. Louis stated that
“crimes and military offenses are frequently committed which are not triable or
punishable by courts-martial and which are not within the jurisdiction of any existing
civil court.”120 Offenses within the jurisdiction of civil courts “whenever such loyal
courts exist will not be tried by a military commission.”121
Tribunals were instruments to enforce not so much the Articles of War, enacted
by Congress and delegated to courts-martial, but rather the customary international
standards known as the “laws of war.” It was a well-established principle, said
General Halleck, that “insurgents and marauding, predatory and guerrilla bands are
not entitled” to an exemption from military tribunals. These men are “by the laws
of war regarded as no more nor less than murderers, robbers and thieves.” Wearing
military uniforms “cannot change the character of their offenses nor exempt them
President Lincoln, assisted by the office of adjutant general, reviewed and often
overturned the work of tribunals. After a tribunal in St. Louis ordered a civilian to
be shot for giving aid and comfort to the enemy, the sentence was nullified because
nothing had been proved “except the utterance of very disloyal sentiments. No acts
are shown which would warrant the sentence of death.”123 When a tribunal in
Missouri found an individual guilty of murder and “a bad and dangerous man” (for
being a member of a guerrilla band) and ordered him shot, Lincoln disapproved the
sentence because the record was “fatally defective.”124 In other cases, tribunals
sentenced rebel soldiers, in uniform, to death for treason. Those proceedings were
disapproved by Lincoln because “the record shows clearly that the accused are
prisoners of war.”125
Laws Recognizing Tribunals
The tribunals created during the Civil War originated from the executive branch,
not from Congress. Nevertheless, several statutes enacted from 1862 to 1864
recognized the existence and operation of tribunals. Legislation on July 17, 1862
authorize the President to appoint, by and with the advice and consent of the Senate,
a judge advocate general, “to whose office shall be returned, for revision, the records
Id. at 247.
Id. at 248.
Id. at 242-43.
General Orders No. 230, included in U.S. War Department, General Orders 1863, vol.
5 (Nos. 201-300), Library of Congress, at 2-3, 6 (emphasis in original).
Id. at 3-5, 6.
General Orders No. 145, included in U.S. War Department, General Orders 1863, vol.
4 (Nos. 1-200), Library of Congress, at 1-3, 4.
and proceedings of all courts-martial and military commissions, and where a record
shall be kept of all proceedings had thereupon.”126
Legislation in 1863 provided that in time of war, insurrection, or rebellion,
certain offenses “shall be punishable by the sentence of a general court-martial or
military commission,” when committed by persons who were members of the
military service and subject to the Articles of War.127 This section did not give
tribunals jurisdiction over citizens who were not in the military. The statute also
provided that all persons, in time of war or rebellion against the United States, found
lurking as spies in or about any U.S. fortifications, posts, quarters, or encampments
“shall be triable by a general court-martial or military commission, and shall, upon
conviction, suffer death.”128
An 1864 statute dealt with the Quartermaster’s Department and inspectors, who
were expected to perform their duties in “a faithful and impartial manner.” For any
corruption, wilful neglect, or fraud in their official conduct, they were liable to
punishment for fine and imprisonment, “by sentence of court-martial or military
commission.”129 Another 1864 statute made mention of military commissions.130
The Dakota Trials
In1862, hostilities broke out between American settlers in Minnesota and the
Dakota (or Sioux) community. Five weeks of fighting resulted in the deaths of 77
American soldiers, 29 citizen-soldiers, approximately 358 settlers, and an estimated
29 Dakota.131 Col. Henry H. Sibley created a five-member military tribunal to
investigate the incidents and pass judgment, even though all members of the tribunal
had fought against the Dakota.132 The tribunal convicted 323 and recommended the
hanging of 303.
President Lincoln, learning of the trials on October 14, directed that no
executions be made without his approval. Federal law, in fact, made that a
requirement. For all courts-martial and military tribunals, “no sentence of death, or
imprisonment in the penitentiary, shall be carried into execution until the same shall
have been approved by the President.”133 Maj. Gen. John Pope, Sibley’s
commanding officer, telegraphed Lincoln on November 11, warning that if the
12 Stat. 598, sec. 5 (1862).
Id. at 736, sec. 30 (1863).
Id. at 737, sec. 38.
13 Stat. 397, sec. 6 (1864).
Id. at 356. ch. 215, sec. 1 (1864).
Carol Chomsky, “The United States-Dakota War Trials: A Study in Military Injustice,”
43 Stan. L. Rev. 13, 21-22 (1990).
Id. at 22-24.
12 Stat. 698, sec. 5 (1862).
condemned were not executed, there would be “an indiscriminate massacre” of 1,500
women, children, and elderly Indians still held prisoner.134
Lincoln adopted this general policy: “Anxious to not act with so much clemency
as to encourage another outbreak, on the one hand, nor with so much severity as to
be real cruelty, on the other, I caused a careful examination of the records of trials to
be made, in view of first ordering the execution of such as had been proved guilty of
violating females.”135 Only two examples of that category surfaced. He then directed
that the examination look for those “who were proven to have participated in
massacres, as distinguished from participation in battles.”136 That class, included the
two convicted of female violation, numbered 40. For one of the violators, the
tribunal recommended a jail sentence of ten years.137 This leniency resulted when the
individual turned state’s evidence against other defendants. He served three years in
prison before being released.138
Out of the 303 slated for execution, Lincoln ordered the death sentence for 39
and commuted or pardoned the rest.139 Because subsequent evidence cast doubt on
the guilt of one of the accused, 38 were executed.140 Congress later passed legislation
to provide funds for the relief of persons damaged by the Sioux Indians and also for
the Indians who gave assistance to white men, women, and children.141
The tribunals for the Dakota trials have been the subject of several critiques,
partly because of the accelerated nature of the proceedings (some lasting five
minutes) and the prejudice of tribunal members. Counsel was not provided to the
defendants, even for those who had little command of English.142 There is also a
question whether Col. Sibley possessed authority to convene the tribunal. Article of
War 65 provided that in cases of capital crimes, the officer who convened a courtmartial could not also be the accuser. General Pope and Judge Advocate General
Holt concluded that Sibley was an accuser, “and Sibley did not disagree.”143 Sibley’s
defense was that Article 65 applied only to the court-martial of an inferior soldier, not
to a military tribunal of outsiders. Yet the army had determined, by January 1, 1862,
that military tribunals should be conducted with the same procedures as courts-
1:13 War of the Rebellion 788.
S. Ex. Doc. No. 7, 37th Cong., 3d Sess. 1 (1862).
Id. at 1-2 (emphasis in original).
Id. at 2. This document also appears at 5 Lincoln 550-51.
Kenneth Carley, The Sioux Uprising of 1862, at 68 (1976).
S. Ex. Doc. No. 7, at 2, 6-7.
Chomsky, “The United States-Dakota War Trials,” at 34. See also David A. Nichols,
Lincoln and the Indians; Civil War Policy and Politics 94-118 (1978).
13 Stat. 92-93 (1864); 13 Stat. 427 (1865).
Chomsky, “The United States-Dakota Trials,” at 52-53.
Id. at 56.
martial.144 Whether for soldiers or for outsiders, the purpose of Article 65 was to
prevent actual or perceived bias.
Decisions by military tribunals during the Civil War were reviewed by some
federal courts, the most prominent cases involving John Merryman, Clement
Vallandigham, and Lambdin Milligan. During the war, it became clear that courts
would have little role in placing constraints either on martial law or military
tribunals. Only after the war did courts begin to assert their independence and
impose some limits on executive actions.
John Merryman was suspected of being the captain of a secession group and
giving assistance to plans to destroy railroads and bridges. He was arrested by
military authorities on May 25, 1861 and imprisoned at Fort McHenry in Baltimore,
Md. His counsel sought a writ of habeas corpus from Chief Justice Roger Taney,
sitting as circuit judge. On the following day, Taney issued the writ to the
commandant of the fort, directing him to bring Merryman to the circuit court room
in Baltimore on May 27. The commandant declined to produce Merryman. Taney
then prepared an attachment to hold the commandant in contempt, but the court’s
marshal was unable to enter the gate of the prison to serve the writ.145
Taney wrote an opinion that expressed his views on presidential power and
constitutional procedures. He concluded that a military officer had no right to arrest
and detain a person “not subject to the rules and articles of war, for an offence against
the laws of the United States, except in aid of the judicial authority, and subject to its
control.” For that reason, Merryman was “entitled to be set at liberty and discharged
immediately from imprisonment.”146 He also stated his opinion that the Constitution
gave Congress, not the President, the power to suspend the privilege of the writ.147
Noting that his order “has been resisted by a force too strong for me to overcome,”
he directed his clerk to transmit a copy of his order to Lincoln, where it would remain
“for that high officer, in fulfillment of his constitutional obligation to ‘take care that
the laws be faithfully executed.’ to determine what measures he will take to cause the
civil process of the United States to be respected and enforced.”148
Id. at 56, n. 269.
Ex parte Merryman, 17 Fed. Cas. 144, 147 (No. 9,487) (D.C. Md. 1861).
Id. at 148.
Id. at 153.
Merryman was not brought before a military tribunal. Instead, he was indicted
in a civil court for treason or conspiracy to commit treason and released on bail, at
$40,000. He was never brought to trial.149
On April 13, 1863, General Ambrose Burnside issued General Order No. 38,
warning that the death penalty would be imposed on those who not only gave
physical aid to the Confederacy but even expressed “sympathies” for the enemy.150
Less than a month later, on May 5, military authorities arrested Clement L.
Vallandigham and charged that in a public speech four days earlier he had expressed
sympathy for the South and uttered “disloyal sentiments and opinions, with the object
and purpose of weakening the power of the Government in its efforts for the
suppression of an unlawful rebellion.”151 His speech described the Civil War as
“wicked, cruel, and unnecessary,” waged not for the preservation of the Union but
“for the purpose of crushing our liberty and to erect a despotism,” to free blacks, and
Vallandigham, a former Member of Congress from Ohio, was tried before a
military tribunal. In his testimony he denied that the tribunal had jurisdiction over
him since he was not in the land or naval forces or in the militia. He insisted that he
be tried before a civil court with customary constitutional rights and protections.
Moreover, he said that the charge brought by the tribunal was not known to the
Constitution or to federal law, and that his criticism of government policy was
delivered at an open and public meeting, lawfully and peaceably assembled, upon full
The tribunal found him guilty except for his comments that Lincoln and his
officers had rejected peaceful overturns to win back the southern states, and that the
administration was attempting to establish a despotism “more oppressive than ever
existed before.” He was placed in close confinement in a federal fort, to be held
there for the duration of the war. After General Burnside approved the finding and
sentence, Lincoln commuted the sentence and ordered the Army to put Vallandighm
beyond the Union’s military lines.154
During the course of his confinement, Vallandigham sought a writ of habeas
corpus from the Supreme Court, which concluded that the petition to hear the case
“we think not to be within the letter or spirit of the grants of appellate jurisdiction to
Carl B. Swisher, The Taney Period, 1836-64, at 853-54 (1974); Dean Sprague, Freedom
Under Lincoln 43-44 (1965).
Michael Kent Curtis, “Lincoln, Vallandigham, and Anti-War Speech in the Civil War,”
7 Wm. & Mary Bill Rts. J. 105, 119 (1998).
Ex parte Vallandigham, 1 Wall. (68 U.S.) 243, 244 (1864).
Id. at 246.
Id. at 247-48.
the Supreme Court.” Nor were the operations of a military tribunal covered by the
“law or equity” provision of Article III of the Constitution, or within the meaning of
Section 14 of the Judiciary Act of 1789.155 Under this reasoning, the Court held that
it had no jurisdiction to review the proceedings of a military tribunal.156
The Milligan Case
In 1864, military authorities arrested Lambdin P. Milligan, a U.S. citizen from
Indiana, on charges of conspiracy. Found guilty before a military tribunal, he was
sentenced to be hanged.157 He presented a petition of habeas corpus to a federal
judge, asking that he be discharged because the military lacked jurisdiction over him.
He argued that he was entitled to trial by jury before a civilian court. By the time the
case reached the Supreme Court, the Civil War was over. The Court ruled that the
laws and usages of war can never be applied to citizens in states where the civilian
courts are open and their process unobstructed.158 The Court held that the statute of
March 3, 1863 gave federal courts “complete jurisdiction to adjudicate upon this
case.”159 Milligan’s trial and conviction by a tribunal “was illegal” and under the
terms of the statute he was entitled to be discharged from custody.160
Four Justices dissented, but not on the Court’s jurisdiction to hear and decide
the case. On that point they agreed with the majority.161 The dissenting Justices
regarded the matter completely settled by the March 3, 1863 legislation.162 They
disagreed only on the broad claim of the Court that military tribunals could not
operate when civil courts were open and functioning, and that it was not in the power
of Congress to authorize tribunals during such periods. To the minority, Congress
“had power, though not exercised, to authorize the military commission which was
held in Indiana.”163
In response to this decision, Congress passed legislation to limit the Court’s
jurisdiction to hear cases involving military law. Despite the fact that civil lawsuits
were already pending regarding the conduct of U.S. officials during and immediately
after the war, Congress gave indemnity to all officials who implemented presidential
proclamations from March 4, 1861 to June 30, 1866, with respect to martial law and
military trials. The statute provided: “And no civil court of the United States, or of
any State, or of the District of Columbia, or of any district or territory of the United
Id. at 251.
Id. at 253-54.
2:8 War of the Rebellion 6-11, 543-49.
Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
Id. at 117.
Id. at 130, 131.
Id. at 132.
Id. at 133.
Id. at 137.
States, shall have or take jurisdiction of, or in any manner reverse any of the
proceedings had or acts done as aforesaid.”164
Milligan appeared to prohibit military tribunals when civil courts were
operating, but tribunals continued to function in the South under martial law during
the Reconstruction period. From the end of April 1865 to January 1, 1869, there
were 1,435 trials by military tribunals and others occurred in Texas and Mississippi
in 1869 and 1870.165
Other Judicial Rulings
A number of district and circuit courts examined the legality of habeas corpus
suspensions during the Civil War. In 1862, a district court held that the President is
not vested by the Constitution with power to suspend the privilege of the writ of
habeas corpus at any time, without the authority of an act of Congress.166 Also in
1862, a circuit court in Vermont held that the War Department had no authority to
issue an order suspending the writ of habeas corpus. At the time, neither Congress
nor the President had declared that the public safety required the establishment of
martial law or the suspension of habeas corpus in loyal states.167
In 1863, after Congress had passed the statute of March 3, 1863, two district
courts upheld Lincoln’s actions. In the first, the court ruled that his proclamation of
September 15, 1863, suspending the writ, was “valid and efficient in law.”168 Lincoln
grounded his proclamation on the March 3, 1863 statute.169 Similarly, a district court
in Massachusetts looked to the broad language of the statute as reason to alleviate
judicial concern. The statutory grant of authority was total: “No case is excepted.
Not one is withheld from the operation of this power. All come within its scope, and
the cases now before me are clearly comprehended in this language.”170
After the war was over, federal courts became less tolerant of military tribunals
that operated without specific statutory authority. In 1866, a circuit court in New
York remarked that a trial before tribunal took place seven months after hostilities
had terminated and the rebel army had surrendered, and that the trial “was not had
under the rules and articles of war, as established by the United States in congress
assembled.”171 The court described martial law as “neither more nor less than the
14 Stat. 432, 433 (1867).
Mark E. Neely, Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties 176-77
Ex parte Benedict, 3 Fed. Cas. 159 (No. 1,292) (D. N.Y. 1862).
Ex parte Field, 9 Fed. Cas. 1, 3 (No. 4,761) (C.C. Vt. 1862).
In re Dunn, 8 Fed. Cas. 93 (No. 4,171) (S.D. N.Y. 1863).
3 Stat. 734 (1863).
In re Fagan, 8 Fed. Cas. 947, 949 (No. 4,604) (D. Mass. 1863).
In re Egan, 8 Fed. Cas. 367 (No. 4,303) (C.C. N.Y. 1866).
will of the general who commands the army. . . . The commander is the legislator,
judge, and executioner.”172
Captain Henry Wirz
A nine-member military tribunal convened at Washington, D.C. on August 23,
1865 to hear charges of conspiracy and murder against eight Southerners who
administered the Andersonville prison, a “name that has come to stand for human
misery wrought by war.”173 Thousands of Union soldiers held in this Georgia prison
died from overcrowding, sun exposure, inadequate food, polluted water, lack of
medicine, and disease. Both sides, prosecution and defense, conceded that conditions
at the prison were inhumane.
The focus at the trial should have been on establishing the personal culpability
of Captain Henry Wirz, superintendent of the prison. Yet the prosecution used a
broad brush to make him responsible for many evils of the Civil War, including the
assassination of Lincoln. The presentation by Judge Advocate General Holt ranged
far and wide:
When we remember that the men here charged, and those inculpated, but not
named in the indictment, are some of them men who were at the head of the late
rebellion, from its beginning to its close, and as such chiefs, sanctioned the brutal
conduct of their soldiers as early as the first battle of Bull Run; . . . who
sanctioned a guerilla [sic] mode of warfare; who instilled a system of steamboat
burning and firing of cities; who employed a surgeon in their service to steal into
our capital city infected clothing; . . . who organized and carried to a successful
termination a most diabolical conspiracy to assassinate the President of the
United States — when we remember these things of these men, may we not
without hesitancy bring to light the conspiracy here charged?174
Holt reminded the tribunal members of the efforts of John A. Bingham, who
“delivered for the prosecution in the trial of the conspirators for the assassination of
President Lincoln” the argument on conspiracies.175 Lincoln’s assassination had the
effect of canceling the initial public support for mercy toward the South and
replacing it with “a demand for vengeance,” not only against those who conspired
against Lincoln “but against all the former leaders of the Confederacy.”176 Secretary
of War Stanton helped promote the idea of a conspiracy in the South, directed by
Jefferson Davis and the Confederacy, that supplied the driving force for the
Lewis L. Laska and James M. Smith, “‘Hell and the Devil’: Andersonville and the Trial
of Captain Henry Wirz, C.S.A., 1865,” 68 Mil. L. Rev. 77, 78 (1975).
H. Ex. Doc. No. 23, 40th Cong., 2nd sess. 749 (1967).
Id. at 749-50.
Laska and Smith, “‘Hell and the Devil’,” at 83.
assassination of Lincoln.177 When evidence for that theory could not be assembled,178
there remained a determination to make some southerners pay a price.
The weight of that prejudice fell on Wirz.179 He was “hurried to his death by
vindictive politicians, an unbridled press, and a nation thirsty for revenge.”180 John
Howard Stibbs, one of the nine members of the tribunal, published an article in 1911
recounting his experience. He said that the evidence presented at the trial “satisfied
the Court beyond a doubt that while this prison was being made ready, if not before,
a conspiracy was entered into by certain persons, high in authority in the Confederate
service, to destroy the lives of our men, or at least subject them to such hardships as
would render them unfit for further military service.”181 The target of the trial was
therefore not Wirz but the “conspiracy.” Unable to substantiate the latter, the tribunal
settled on Wirz.
The documentary record reveals efforts by Wirz to improve camp conditions.
When he arrived at the prison in early 1864, drainage of the grounds had been
neglected and there were inadequate shelters.182 His dispatches to headquarters called
attention to the poor quality of bread and requested equipment to correct conditions
at the camp.183 He attempted to construct dams that would subdivide a stream running
through the prison into areas for drinking, bathing, and sanitation, but lacked the
materials to complete the job.184
Col. A. C. Chandler, who visited the camp as a Union officer during the war and
identified a number of deficiencies,185 said that Wirz was “entitled to commendation
for his untiring energy and devotion to the multifarious duties of his position, for
which he is pre-eminently qualified.”186 He joined General J. H. Winder in
recommending Wirz for promotion. The person Chandler wanted removed from duty
was not Wirz but Winder. At the trial, Chandler described Winder as “very
Darrett B. Rutman, “The War Crimes and Trial of Henry Wirz,” 6 Civil War Hist. 117,
William Hanchett, The Lincoln Murder Conspiracies 78-82 (1986).
The two charges (the second containing 13 specifications) are reproduced at 1:8 War of
the Rebellion 785-89.
Rutman, The War Crimes and Trial of Henry Wirz,” at 118.
John Howard Stibbs, “Andersonville and the Trial of Henry Wirz,” 9 Iowa J. Hist. & Pol.
33, 35 (1911).
2:7 War of the Rebellion 167-68.
Id. at 207, 521.
Rutman, “The War Crimes and Trial of Henry Wirz,” at 119. See also Laska and Smith,
“‘Hell and the Devil’,” at 115.
H. Ex. Doc. No. 23, at 224-50.
Id. at 226 (Chandler report of August 5, 1864).
indifferent to the welfare of the prisoners, indisposed to do anything, or to do as
much as I thought he ought to do, to alleviate their sufferings.”187
Chandler told the tribunal that during one of his visits to Andersonville, he
decided to make inquiries directly of the prisoners. Having been a prisoner himself,
he knew the “unwillingness of prisoners to make complaints in the presence of those
who have power over them, and for that reason, I took the men aside and questioned
them so that Wirz could not hear me as to any complaints they had to make, and none
of them made any complaints against him.”188
At the trial, Wirz was found guilty on most of the charges.189 President Andrew
Johnson approved the proceedings and sentences and ordered that Wirz be hanged
on November 10, 1865. The execution was carried out as ordered, with Wirz’s body
interred in Washington, D.C. by the side of one of the Lincoln conspirators, George
Conspirators of Lincoln’s Assassination
The most controversial Civil War tribunal was the trial of eight people charged
with conspiring to assassinate President Lincoln. On May 1, 1865, President Johnson
ordered nine military officers to serve on the tribunal to try the suspects, even though
civil courts were open and operating.191 The tribunal convened on May 9 to try seven
men and one woman: David E. Herold, G. A. Atzerodt, Lewis Payne, Mary E.
Surratt, Michael O’Laughlin, Edward Spangler, Samuel Arnold, and Samuel A.
Mudd.192 They were charged with conspiring to kill Lincoln, Vice President Johnson,
Secretary of State William H. Seward, and General Ulysses S. Grant.193
Four received prison sentences and four were sentenced to death by public
hanging: Herold, Atzerodt, Payne, and Surratt.194 Johnson approved the sentences
on July 5 and ordered the executions to take place two days later.195 On the morning
of the scheduled executions, Surratt’s attorneys applied for and received a writ of
Id. at 240.
He was found guilty of the first charge (conspiracy) and of ten out of 13 specifications
of the second charge (murder); 2:8 War of the Rebellion 791.
H. Ex. Doc. No. 23, at 815.
8 Richardson 3532-33.
Id. at 3540.
Id. at 3540-41.
Id. at 3543-45.
8 Richardson 3545-46; 8 The Papers of Andrew Johnson 357 (1989).
habeas corpus, but Attorney General James Speed advised the civil court that
Johnson had suspended the writ.196
Johnson asked Speed for a legal opinion on whether the persons charged with
conspiracy could be tried before a military tribunal or must be tried before a civil
court. Speed acknowledged that although martial law had been declared in the
District of Columbia at the time of Lincoln’s assassination, “the civil courts were
open and held their regular sessions, and transacted business as in times of peace.”197
Yet Speed concluded that the conspirators “not only may but ought to be tried by a
military tribunal.”198 It was within the power of Congress to prescribe how tribunals
“are to be constituted, what shall be their jurisdiction, and mode of procedure.” If
Congress failed to create such tribunals, “then, under the Constitution, they must be
constituted according to the laws and usages of civilized warfare.”199
Speed further reasoned that “when war comes, the laws of war come with it,”
and Presidents had substantial constitutional authority to act under the laws of war.200
Some of the offences against the laws of war are crimes, punishable in the civil
courts, “and some not.”201 He recognized that murder (and attempted murder) are
crimes punishable in the civil courts, but added that “in committing the murder an
offence may also have been committed against the laws of war; for that offence he
must answer to the laws of war, and the tribunals legalized by that law.”202
Speed did not explain why murder or attempted murder could not, or should not,
be tried in civil court. He said that the fact that civil courts “are open does not affect
the right of the military tribunal to hold as a prisoner and to try.” Civil courts “have
no more right to prevent the military, in time of war, from trying an offender against
the laws of war than they have a right to interfere with and prevent a battle.”203 The
analogy here is strained. Courts are created to try offenders, not to engage in military
Opinions of the Attorney General usually have a specific date: month, day, and
year. Speed’s opinion is merely marked “July, 1865,” which is two months after
President Johnson created the tribunal and the same month that the tribunal rendered
its verdicts and carried out the hangings. Given the timing of Speed’s opinion, it
16 The Papers of Andrew Johnson 486 (2000); William Hanchett, The Lincoln Murder
Conspiracies, at 70.
11 Op. Att’y Gen. 297, 297 (1865).
Id. at 298.
Id. at 312.
Id. at 312-13.
Id. at 315.
appears to be an after-the-fact analysis to justify not what could happen, legally, but
what had happened or was about to happen.204
Edward Bates, who served as Attorney General under Lincoln from 1861 to
1863, held a low opinion of Speed. He said Speed came into office “with not much
reputation as a lawyer, and perhaps, no strong confidence in his own opinions,”
vulnerable to falling under the influence of Cabinet officers such as Secretary of War
Stanton and Secretary of State Seward, “to give such opinions as were wanted!”205
Bates considered the military tribunal for the conspirators a great mistake: “Such a
trial is not only unlawful, but it is a gross blunder in policy: It denies the great,
fundamental principle, that ours is a government of Law, and that the law is strong
enough, to rule the people wisely and well; and if the offenders be done to death by
that tribunal, however truly guilty, they will pass for martyrs with half the world.”206
Bates objected to military tribunals because the people who serve “are selected
by the military commander from among his own subordinates, who are bound to obey
him, and responsible to him; and therefore, they will, commonly, find the case as
required or desired by the commander who selected them.”207 Courts-martial, he
said, exist because of a statute enacted by Congress “and the members thereof have
legal duties and rights,” whereas military tribunals “exist only by the will of the
commander, and that will is their known rule of proceeding.”208 Judge R. A. Watts,
who served as Acting Assistant Adjutant General at the trial, described the tribunal
as “a law unto itself. It made its own rules of procedure. It was the sole judge of the
law, as well as of the facts. . . It was empowered not only to decide the question of
guilt but it also had the power, and it was its duty, to fix the penalties.”209
Clemency for Surratt
The public hanging of Mary Surratt created a political embarrassment for
President Johnson. Several years after her execution, Judge Advocate General Holt
claimed that he presented Johnson with a petition, signed by five members of the
military tribunal, recommending that in consideration of her age and gender she be
imprisoned for life rather than hanged. Johnson denied that he had seen the
document or had anyone discuss it “until some days after, the Execution of Mrs.
Surratt.”210 Public knowledge that a majority of the tribunal had recommended
For a severe critique of Speed’s opinion by former Attorney General Edward Battes, see
Howard K. Beale, The Diary of Edward Bates, 1859-1866, at 498-503 (1933).
Id. at 483.
Id. (emphasis in original).
Id. at 502 (emphasis in original).
Id. (emphasis in original).
Judge R. A. Watts, “The Trial and Execution of the Lincoln Conspirators,” 6 Mich. Hist.
Mag. 81, 99 (1922).
16 The Papers of Andrew Johnson 440 (2000) (emphasis in original) William Hanchett,
The Lincoln Murder Conspiracies, at 87-88.
imprisonment for Surratt sparked a “growing sentiment that she had been unjustly put
Johnson’s presidential term ended on March 4, 1869. Returning to Tennessee,
he decided in 1872 to run for Congress. During the campaign, Holt published a
lengthy article on August 26, 1873, insisting that he had presented the clemency
petition to Johnson and it had been discussed with several members of the Cabinet,
after which Johnson decided that execution was the proper course.212 Holt tried
unsuccessfully to get Speed to comment publicly on Johnson’s handling of the
Johnson published a lengthy rebuttal on November 11, 1873, disputing Holt’s
account of the clemency offer.214 Johnson said that only after there had been public
notice of the petition had he sent for the papers on August 5, 1867, more than two
years after the executions.215 If Holt in 1867 had disagreed with Johnson on the
presentation of the petition, Johnson asked why Holt had not issued an immediate
challenge and sought the corroboration of Stanton and Seward while they were alive.
By 1873, both were dead.
Samuel A. Mudd
In recent decades, portions of the Lincoln conspiracy trial were replayed in
federal court. Samuel A. Mudd, found guilty of harboring some of the conspirators,
was sentenced to be imprisoned at hard labor for life.216 In 1868, a district court in
Florida held that his case was properly tried by a military tribunal.217 On February 8,
1869, however, President Johnson granted Mudd a full and unconditional pardon.218
More than a century later, Mudd’s grandson challenged the jurisdiction of the
military tribunal that convicted the Lincoln conspirators. In 1992, the Army Board
for Correction of Military Records noted that Mudd never served in the military, was
Hanchett, The Lincoln Murder Conspiracies, at 88.
Vindication of Hon. Joseph Holt, Judge Advocate General of the United States Army
Allen Thorndike Rice, “New Facts About Mrs. Surratt,” 147 No. Am. Rev. 83 (1888).
See also documents put together by Speed’s son, John Speed: “The Assassins of Lincoln,”
147 No. Am. Rev. 314 (1888). For other commentary on the trial see John W. Curran,
“Lincoln Conspiracy Trial and Military Jurisdiction over Civilians,” 9 Notre Dame Lawyer
26 (1933), and Thomas R. Turner, “What Type of Trial: A Civil Versus a Military Trial for
the Lincoln Assassination Conspirators,” 4 Papers of the Abraham Lincoln Association 29
16 The Papers of Andrew Johnson 475-89 (2000).
Id. at 483-84.
8 Richardson 3545.
Ex parte Mudd, 17 Fed. Cas. 954 (No. 9,899) (D. Fla. 1868).
Andrew Johnson Papers, Library of Congress, Reel 50, Series 8C; 15 The Papers of
Andrew Johnson 424 (1999).
a civilian at the time of Lincoln’s assassination, and lived in the non-secessionist
state of Maryland. It concluded that the tribunal, lacking jurisdiction to try Mudd,
“denied him his due process rights, particularly his right to trial by a jury of his
peers,” and that this denial “constituted such a gross infringement of his
constitutionally protected rights, that his conviction should be set aside. To fail to
do so would be unjust.”219
A federal district court in 1998 ruled that the Johnson pardon did not make the
Mudd case moot and that the rejection by the Secretary of the Army of the board’s
recommendation was unsupported by substantial evidence in the record.220 In a
subsequent decision, the court held that the military tribunal had jurisdiction to try
Mudd for violations of laws of war.221 Mudd’s grandson died on May 21, 2002.222
Later that year, the D.C. Circuit dismissed the suit because the descendants of Dr.
Mudd who attempted to clear his name lacked standing.223
From the Civil War to World War II
After the Civil War, the United States made little use of military tribunals until
World War II. As a result of the Spanish-American War of 1898, the United States
acquired the Philippines. Although the American occupation was initially welcomed,
Filipino nationalists opposed colonial status under U.S. rule. A pro-independence
uprising in 1899 led to a protracted and bitter guerrilla war that continued through
U.S. military commander General Arthur MacArthur placed the Philippines
under martial law and relied on a mix of military tribunals and Army provost courts
to discipline the local population.224 Reports of U.S. atrocities against Filipino
prisoners prompted Senate hearings in 1902. Senator Thomas Patterson asked this
question: “When a war is conducted by a superior race against those whom they
consider inferior in the scale of civilization, is it not the experience of the world that
the superior race will almost involuntarily practice inhuman conduct?” William
Howard Taft, the civil governor of the Philippine Islands, responded: “There is much
greater danger in such a case than in dealing with whites. There is no doubt about
Mudd v. Caldera, 26 F.Supp.2d 113, 117 (D.D.C. 1998).
Id. at 119-23.
Mudd v. Caldera, 134 F.Supp.2d 138 (D.D.C. 2001). See John Paul Jones, ed., Dr. Mudd
and the Lincoln Assassination: The Case Reopened (1995).
“Richard D. Mudd, 101; Grandson of Booth Doctor,” Washington Post, May 22, 2002,
Mudd v. White, 309 F.3d 819 (D.C. Cir. 2002); Neil A. Lewis, “Suit to Clear Doctor
Who Treated Booth Is Dismissed,” New York Times, November 9, 2002, at A13.
Brian McAllister Linn, The U.S. Army and Counterinsurgency in the Philippine War,
1899-1902, at 23-25, 55-56 (1989).
that.”225 The hearings called attention to a number of atrocities committed by the
After enacting the Articles of War in 1806, Congress did not subject them to
comprehensive revision for more than a century. The process began in 1912 when
the House Committee on Military Affairs held hearings to consider a bill designed
to revise the Articles. Secretary of War Henry L. Stimson told the committee that the
existing Articles were “notoriously unsystematic and unscientific.”227 At these
hearings, Judge Advocate General E. H. Crowder drew attention to an “entirely new”
Article on military commissions, a type of court that had never been “formally
authorized by statute” but was an institution “of the greatest importance in a period
of war and should be preserved.”228 Asked what he meant by this tribunal, he
described it as a “common law of war court” never regulated by statute.229 As he put
it at subsequent hearings, these war courts grew out of “usage and necessity.”230
A piecemeal revision of the Articles of War in 1913 seems to challenge the
unique jurisdiction of military tribunals to handle disputes over the law of war. New
language gave general courts-martial the power to try any person subject to military
law for any crime punishable by the Articles of War, but also jurisdiction over “any
other person who by statute or by the law of war is subject to trial by military
tribunals.”231 That language would reappear in the Articles of War enacted in 1916
and 1920.232 Did this statutory provision eliminate the need for military tribunals?
Seeking to forestall that interpretation, Crowder fashioned language to assure
that conferring jurisdiction on general courts-martial over the law of war did not
deprive military tribunals of concurrent jurisdiction. Because he expected the
jurisdictions of courts-martial and tribunals to frequently overlap, and questions
would naturally arise as to whether congressional action in vesting jurisdiction by
statute in courts-martial would eliminate the need for tribunals, he wanted to make
“it perfectly plain by the new article that in such cases the jurisdiction of the war
court is concurrent.”233
“Affairs in the Philippine Islands,” hearings before the Senate Committee on the
Philippines, 57th Cong., 1st Sess. 77 (1902).
Id. at 559. See Richard E. Welch, Jr., “American Atrocities in the Philippines: The
Indictment and the Response,” 43 Pac. Hist. Rev. 233 (1974).
“Revision of the Articles of War,” hearing before the House Committee on Military
Affairs, 62d Cong., 2d Sess. 3 (1912).
Id. at 29.
Id. at 35.
S. Rept. No 130, 64th Cong., 1st Sess. 41 (1916). This report includes the transcript of
37 Stat. 722 (1913).
39 Stat. 652, Art. 12 (1916); 41 Stat. 789, Art. 12 (1920).
“Revision of the Articles of War,” hearing before the House Committee on Military
The Senate Committee on Military Affairs reported legislation in 1914 to revise
the Articles of War.234 During floor action the following year, the Articles were
added as an amendment to an army appropriations bill.235 As enacted in 1916,
Crowder’s Article 15 read:
ART. 15. NOT EXCLUSIVE. — the provisions of these articles conferring
jurisdiction upon courts-martial shall not be construed as depriving military
commissions, provost courts, or other military tribunals of concurrent jurisdiction
in respect of offenders or offenses that by the law of war may be lawfully triable
by such military commissions, provost courts, or other military tribunals.236
New controversies erupted in 1917 because of charges that military law lacked
adequate procedures and opportunities for proper review. Also, several sensational
cases were brought forward to highlight excessive punishment of American soldiers
during World War I.237 In 1920, Congress decided to put the new Articles of War not
in an appropriations bill, but in an authorization measure called National Defense Act
Amendments. As reported by the House Committee on Military Affairs, the National
Defense Act did not contain the new Articles.238 However, the Senate included the
Articles in the bill, as did the conferees.239 The wording of Article 15 was changed
slightly. Instead of restricting the Article to offenses under “the law of war,” the new
Article covered offenses both by statute and the law of war:
ART. 15. JURISDICTION NOT EXCLUSIVE. — The provisions of these articles
conferring jurisdiction upon courts-martial shall not be construed as depriving
military commissions, provost courts, or other military tribunals of concurrent
jurisdiction in respect of offenders or offenses that by statute or by the law of
war may be triable by such military commissions, provost courts, or other
During Senate hearings in 1916, Crowder testified that courts-martial and
military tribunals “have the same procedure.”241 That has not been the case. The
procedures for courts-martial have been spelled out in statutory Articles of War and
Affairs, 62nd Cong., 2nd sess. at 29.
S. Rept. No. 229, 63rd Cong., 2nd sess. (1914).
52 Cong. Rec. 4290, 4296-4303 (1915). See also S. Rept. No. 130, 64th Cong., 1st sess.
(1916) and 53 Cong. Rec. 11474, 11504-13 (1916).
39 Stat. 653 (1916).
Herbert F. Margulies, “The Articles of War, 1920: The History of a Forgotten Reform,”
43 Mil. Aff. 85 (1979).
H. Rept. No. 680, 66th Cong., 2nd sess. (1920).
H. Rept. No. 1049, 66th Cong., 2nd sess. 66 (1920); 59 Cong. Rec. 7834 (1920).
41 Stat. 790 (1920).
S. Rept. No. 130, 64th Cong., 1st sess. 40 (1916). This report reprints the transcript of
in the Manual for Courts-Martial. Military tribunals have been relatively free in
adopting what ever procedures they like, even adopting them after a trial is underway.
Part of the Articles of War in 1920 appeared to restrict what a President may do
in adopting procedures for military tribunals. Article 38 authorized the President to
prescribe, by regulations, “which he may modify from time to time,” the rules for
cases before courts-martial, courts of inquiry, military commissions, and other
military tribunals. Congress directed that these regulations “shall, in so far as he
shall deem practicable, apply the rules of evidence generally recognized in the trial
of criminal cases in the district courts of the United States.” Moreover, “nothing
contrary to or inconsistent with these articles shall be so prescribed.” All rules made
pursuant to Article 38 were to be placed before Congress each year.242 Those
provisions imposed certain rules and standards on the President. In subsequent
military tribunals, including the trial of the German saboteurs in 1942 and the
Yamashita case in 1945, Presidents and military commanders devised rules and
procedures that departed widely from these earlier statutory standards.
During World War I, Lothar Witzke entered the United States at the Mexican
border. Although he had a Russian passport, he was a German spy using the alias
Pablo Waberski on a mission to commit sabotage against certain American targets.
he was picked up by army officials in Nogales, Arizona and brought to Fort Sam
Houston in San Antonio, Texas, where he faced a military tribunal of two brigadier
generals and three colonels. He was charged with violation Article of War 82: “Any
person who in time of war shall be found lurking or acting as a spy in or about any
of the fortifications, posts, quarters, or encampments of any of the armies of the
United States, or elsewhere, shall be tried by a general court-martial or by a military
commission, and shall, on conviction thereof, suffer death.” Two-thirds of the
tribunal — a sufficient number — found him guilty.243
An opinion by Attorney General Thomas W. Gregory in 1918 understood that
Waberski was a Russian national sent to the United States by the German
ambassador to Mexico to function as a German agent or spy. It was believed that he
intended to explode and wreck munition barges, powder magazines, and other war
utilities in the United States. At the moment he touched foot on U.S. territory he was
apprehended by military authorities and had not entered any camp, fortification or
other U.S. military facility. Martial law had not been declared at Nogales or
anywhere else in the United States, and the regular federal civilian courts were
functioning in that district.
Relying in part on Ex parte Milligan, Gregory concluded that Witzke could not
be tried by a military tribunal because he had been apprehended in U.S. territory not
41 Stat. 794 (1920).
Henry Landau, The Enemy Within: The Inside Story of German Sabotage in America
under martial law, and had not entered any camp, fortification, or other U.S. military
premise.244 Even without Milligan, Gregory said, the provisions of the Constitution
would themselves plainly bring us to the same conclusions as those set forth in
the opinion of the court in that case, namely, that in this country, military
tribunals, whether courts-martial or military commissions, can not
constitutionally be granted jurisdiction to try persons charged with acts or
offenses committed outside of the field of military operations or territory under
martial law or other peculiarly military territory, except members of the military
or naval forces or those immediately attached to the forces such as camp
Gregory also pointed to Article 29 of the Hague Convention of 1917: “A person
can only be considered a spy when acting clandestinely or on false pretences [sic]
obtains or endeavors to obtain information in the zone of operations of a belligerent
with the intent of communicating it to a hostile party.”246 Gregory added: “Obviously
Waberski does not fit into these definitions.”247
In the Nazi saboteur case of 1942 (discussed next), defense counsel seized upon
Gregory’s opinion to argue that the eight Germans could not be charged with spying
if their activities were not in a theatre of operations. Gregory had said: “in this
country, military tribunals, whether courts-martial or military commissions, can not
constitutionally be granted jurisdiction to try persons charged with acts or offences
committed outside of the field of military operations or territory under martial law
or other peculiarly military territory, except members of the military or naval forces
or those immediately attached to the forces such as camp followers.”248
To minimize the damage done by Gregory’s language, the Justice Department
on July 29, 1942 — in the midst of the Nazi saboteur trial — released a previously
unpublished Attorney General opinion, dated December 24, 1919, taking the opposite
position. Attorney General A. Mitchell Palmer reversed Gregory on the basis of new
facts. Witzke was a German citizen, not a Russian national, and it was now
determined that he was found “lurking or acting as a spy.” The military tribunal
therefore had jurisdiction to try him under Article 82.249 What the defense had relied
on in the Nazi saboteur case was now without value.
31 Op. Att’y Gen. 356 (1918).
Id. at 361.
Id. at 363. Gregory said the Hague Convention of 1917, but he must have meant 1907;
36 Stat. 2303 (1907).
31 Op. Att’y Gen. at 363.
Id. at 361. For the defense attorney’s position, see RG 153, Records of the Office of the
Judge Advocate General (Army), Court-Martial Case Files, CM 3341178, 1942 German
Saboteur Case, National Archives, College Park, Md., at 2796 (hereafter “1942 Military
40 Op. Att’y Gen. 561 (1919), released for publication July 29, 1942.
The Nazi Saboteur Case
In June 1942, eight German saboteurs reached the United States by submarine,
intent on using explosives against railroads, factories, bridges, and other strategic
targets. Within a matter of weeks they were rounded up. President Roosevelt issued
a proclamation to create a military tribunal, which a month later found the eight men
guilty. Before the tribunal could reach a verdict, the Germans sought a writ of habeas
corpus from the civil courts. That avenue was blocked when the Supreme Court, in
Ex parte Quirin (1942), upheld the jurisdiction of the tribunal. Late in 1944 the
Roosevelt Administration apprehended two more German spies, but this time it
decided that the tribunal of 1942 was fundamentally flawed and selected another type
of military proceeding.250
Why a Tribunal?
At the time that FBI agents were interrogating one of the 1942 German spies,
George Dasch, they planned to arraign him and the other seven before a district judge
and try them in civil court. A tribunal was selected for two reasons. After agreeing
to go into civil court and plead guilty, Dasch said he now intended to go into court
and tell the entire story, which would include his decision to turn himself in and help
the government apprehend his colleagues.251 The administration, having taken credit
for locating the saboteurs so quickly, did not want it publicly known that one had
turned himself in and fingered the others, nor did it want to broadcast how easily
German U-boats had reached American shores undetected.
The second reason for a military tribunal was the level of punishment sought by
the administration. The statute on sabotage carried a maximum 30-year penalty, but
the men had not actually committed sabotage. In his memoirs, Attorney General
Francis Biddle concluded that an indictment for attempted sabotage probably would
not have been sustained in a civil court “on the ground that the preparations and
landings were not close enough to the planned act of sabotage to constitute
attempt.”252 Federal prosecutors could add the charge of conspiracy to commit
crimes, but the maximum penalty was only three years.253 Maj. Gen. Myron C.
Cramer, Judge Advocate General of the Army, anticipated that a district court would
impose a sentence of no more than two years and a fine of $10,000 for conspiracy to
commit a crime.254
For greater detail on the Nazi saboteurs, see CRS Report RL31340, Military Tribunals:
The Quirin Precedent, by Louis Fisher, and Louis Fisher, Nazi Saboteurs on Trial (2003).
1942 Military Tribunal, at 541-42, 548, 677, 2546.
Francis Biddle, In Brief Authority 328 (1962).
Memorandum for the Assistant Chief of Staff, G-2, June 28, 1942, by Maj. Gen. Myron
C. Cramer, at 4, in “German Saboteurs” file, RG 107, Office of the Secretary of War,
Stimson “Safe Files,” National Archives, College Park, Md. (hereafter “Stimson’s Safe
President Roosevelt was intent on a death penalty, and for that reason supported
a military tribunal. He referred to the death penalty as “almost obligatory.”255
Roosevelt said that “without splitting hairs” he could see no difference between this
case and the hanging of Major André. He warned Biddle: “i.e., don’t split hairs, Mr.
On July 2, 1942, Roosevelt issued Proclamation 2561 to create a military
tribunal. The initial paragraph stated that for the safety of the United States it was
necessary to try the eight Germans “in accordance with the law of war.”257 Reference
to “law of war” was crucial. Had Roosevelt cited the Articles of War, he could have
triggered the statutory procedures established by Congress for courts-martial. The
category “law of war,” undefined by statute, represented a more diffuse collection of
principles and customs developed in the field of international law. Dating back to
Article of War 15 crafted by Judge Advocate General Crowder, Congress took note
of the law of war in this manner: “The provisions of this chapter conferring
jurisdiction upon courts-martial do not deprive military commissions, provost courts,
or other military tribunals of concurrent jurisdiction with respect to offenders or
offenses that by statute or by the law of war may be tried by military commissions,
provost courts, or other military tribunals.”258
Also on July 2, 1942, Roosevelt issued a military order appointing the members
of the tribunal, the prosecutors, and the defense counsel.259 All of the men were
subordinate to the President: the seven generals who sat on the tribunal, the two
prosecutors (Attorney General Biddle and Judge Advocate General Cramer), and the
colonels who served as defense counsel.
The military order empowered the tribunal to “make such rules for the conduct
of the proceeding, consistent with the powers of military commissions under the
Articles of War, as it shall deem necessary for a full and fair trial of the matters
before it.” This language freed the tribunal from the specific procedures enacted by
Congress and the Manual for Courts-Martial. Instead of procedures established in
advance, the tribunal would create rules over the course of the trial. Cramer told the
tribunal that it had discretion “to do anything it pleases; there is no dispute about
Roosevelt’s order directed that the trial record, including any judgment or
sentence, be transmitted “directly to me for my action thereon.” This marked a
significant departure from military trials. Under Articles of War 46 and 50½, any
conviction or sentence by a military court was subject to review within the military
Memo from Roosevelt to Biddle, June 30, 1942, PSF, “Departmental File, Justice, 194044,” Box 46, FDR Library, Hyde Park, N.Y.
Biddle, In Brief Authority, at 330.
7 Fed. Reg. 5101 (1942).
10 U.S.C. § 821 (2000).
7 Fed. Reg. 5103 (1942).
1942 Military Tribunal, at 991.
system, including the Judge Advocate General’s office. That avenue was closed
because Cramer participated as co-prosecutor.
The military tribunal met from July 8 to August 1, 1942. The government
charged the eight Germans with four crimes: one against the “law of war,” two
against the Articles of War (81st and 82d), and one involving conspiracy. The first
specified that the men, acting on behalf of a belligerent enemy action, “secretly and
covertly passed, in civilian dress, contrary to the law of war,” through military lines
for the purpose of committing acts of sabotage. Article 81 concerned efforts to assist
the enemy, including giving intelligence to it. Article 82 referred to persons in time
of war “found lurking or acting as a spy” in or about military fortifications and
Interlude in Civil Court
On July 21, the twelfth day of the trial, Col. Kenneth Royall for the defense
decided it was time to test the civil courts. He first met with Justice Hugo Black at
the Justice’s home in Alexandria, Va., leading to a meeting on July 23 at Justice
Owen Roberts’s farm outside Philadelphia. In attendance at the farm were Biddle,
Cramer, Black, and Royall’s co-counsel, Col. Cassius M. Dowell. After calling
Chief Justice Harlan Fiske Stone and other Justices, the Court agreed to hold oral
argument on July 29.261
When the tribunal resumed on July 24, Royall could anticipate a hearing by the
Supreme Court but he had yet to present the issue to lower courts. He managed to
get papers to the district court for a writ of habeas corpus and was turned down on
July 28, at 8 p.m. District Judge James W. Morris issued a brief statement denying
permission for the writ, stating that the defendants came within a category —
subjects, citizens, or residents of a nation at war with the United States — that, under
Roosevelt’s proclamation, is “not privileged to seek any remedy or maintain any
proceedings in the courts of the United States.” Judge Morris did not consider Ex
parte Milligan controlling under the circumstances of the Germans.262
Oral argument before the Supreme Court began at noon the next day, with the
Justices inadequately prepared to decide questions they rarely considered, including
the Articles of War and the law of war. The briefs submitted by the two sides are
dated July 29, the same day that oral argument began. The Justices and their clerks
thus lacked the time to independently research the principal issues. The first
difficulty for Royall was to explain how he could be before the Court without action
by the appellate court. The Court let Royall proceed after he promised to get papers
to the D.C. Circuit.263
“The Reminiscences of Kenneth Clairborne Royall,” Oral History Research Office,
Columbia University, 1964, at 35-38; Fisher, Nazi Saboteurs on Trial, at 64-68.
Ex parte Quirin, 57 F.Supp. 431 (D.C.C. 1942).
“Petition for Writ of Certiorari to the Court of Appeals for the District of Columbia,”
reprinted in 39 Landmark Briefs and Arguments of the Supreme Court of the United States
Another problem was the possible disqualification of several Justices because
of personal interests. Justice Frank Murphy had already recused himself because of
his status as an officer in the military reserves. Chief Justice Stone’s son, Lauson,
was part of the defense team. Biddle argued that Stone could sit because his son had
not participated in the habeas corpus proceedings. Stone asked the defense if they
concurred with that argument and Royall replied: “We do.”264
There were grounds for Justices Felix Frankfurter and James F. Byrnes to
disqualify themselves. On June 29, two days after the eight Germans had been
rounded up, Frankfurter reportedly told Secretary of War Henry Stimson over dinner
that the contemplated military tribunal should be composed entirely of soldiers, with
no civilians included. Long before the Court agreed to hear the case, Frankfurter had
already staked out a position that favored the government. Also, Byrnes had been
serving as a de facto member of the Roosevelt Administration, working closely with
Roosevelt and Biddle by giving advice on draft executive orders, a war powers bill,
and offering to get bills out of committee and onto the floor for passage.265 Yet
Frankfurter and Byrnes participated in the case.
The 72-page brief submitted by Royall and Dowell challenged the validity of
Roosevelt’s proclamation creating the tribunal and his military order appointing the
tribunal members. The 93-page brief by Biddle and Cramer argued that the eight
Germans were not entitled to have access to U.S. courts for the purpose of obtaining
writs of habeas corpus. They insisted that the manner of dealing with the saboteurs
lay exclusively with the President, and neither Congress nor the judiciary could
interfere with his decisions: “The President’s power over enemies who enter this
country in time of war, as armed invaders intending to commit hostile arts, must be
absolute.”266 Biddle pressed that point later in oral argument, advising the Court that
in some instances a President as Commander in Chief could act in ways that even
Congress could not control. Chief Justice Stone interrupted: “We do not have to
come to that?” Biddle agreed: “You do not have to come to that.”267
Royall took the position that Congress possessed the constitutional authority to
legislate on military courts and military tribunals, and that any action by the President
contrary to statutory standards would be invalid. He first pointed to language in
Article of War 38 that authorized the President, by regulation, to prescribe the
procedure for cases before courts-martial, courts of inquiry, military commissions,
and other military tribunals, but “nothing contrary to or inconsistent with these
Articles shall be so prescribed.”268 Royall told the Court that Article 38 directed the
President to prescribe the rules of procedure. Instead, Roosevelt had transferred that
296, 498-500 (1975) (hereafter “Landmark Briefs”).
Id. at 496-97.
Fisher, Nazi Saboteurs on Trial, at 95-96.
“Brief for the Respondent,” Landmark Briefs at 423.
Landmark Briefs at 608.
Id. at 550.
function to the military tribunal. Also, the Articles of War required unanimity for a
death penalty. Roosevelt’s proclamation allowed a two-thirds majority. Royall
pointed to the review procedure in Article 46, which required the trial record of a
general court-martial or a military tribunal to be referred to a staff judge advocate or
the Judge Advocate General for review. Article 50½ provided for examination by
a board of review. Yet Roosevelt’s proclamation provided that the trial record of the
military tribunal come directly to him as the final reviewing authority.
The Per Curiam
After oral argument concluded on July 30, the Justices met in conference to
discuss the best course of action. At noon the following day, Chief Justice Stone
read a short per curiam that upheld the jurisdiction of the military tribunal. Defense
lawyers carried the papers from the D.C. Circuit to the Supreme Court only a few
minutes before Stone spoke. The petition for certiorari was not filed in the Court
until 11:59 a.m. on July 31. One minute later the Court convened, granted cert, and
issued its per curiam decision.269 In granting cert, the Court denied motions for leave
to file petitions for writs of habeas corpus and affirmed the decision of the district
In announcing its decision, the Court said that it was acting “in advance of the
preparation of a full opinion which necessarily will require a considerable period of
time for its preparation and which, when prepared, will be filed with the Clerk.”270
A quick per curiam was necessary because the work of the tribunal had been put on
hold. It took the Court three months to draft a decision that would avoid any
concurrences or dissents, even though the Justices were aware that Roosevelt had
violated several Articles of War.271
The tribunal, which concluded its proceedings on August 1, decided that all
eight men were guilty and deserved the death penalty. Roosevelt approved the death
penalty for six but chose prison sentences for Dasch and Peter Burger. The six were
electrocuted on August 8. With six of the saboteurs dead, the Court’s full opinion
could not imply that its per curiam rested on questionable legal grounds or that the
administration had not acted with full authority. Stone wrote to Frankfurter on
September 10 that he found it “very difficult to support the Government’s
construction of the articles [of war].” He was concerned that it “seems almost brutal
to announce this ground of decision for the first time after six of the petitioners have
been executed and it is too late for them to raise the question if in fact the articles as
they construe them have been violated.” Only after the war, he said, would the facts
be known, with release of the trial transcripts and other documents to the public. By
General Myron C. Cramer, “Military Commissions: Trial of the Eight Saboteurs,” 17
Wash. L. Rev. & State Bar. J. 247, 253 (1942).
Ex parte Quirin, 63 S.Ct. 1-2 (1942). The per curiam also appears as a footnote in Ex
parte Quirin, 317 U.S. 1, 18-19 (1942)
Fisher, Nazi Saboteurs on Trial, at 109-21.
that time, Dasch and Burger could challenge the proceedings successfully, which
“would not place the present Court in a very happy light.”272
The Full Opinion
Released on October 29, 1942, the full opinion concluded that the secrecy
surrounding the trial made it impossible for the Court to judge whether Roosevelt’s
proclamation and order violated or were in conflict with the Articles of War.273 In
one his memos, Frankfurter offered the view that “there can be doubt that the
President did not follow” Articles of War 46 through 53. He had “not a shadow of
doubt” that Roosevelt “did not comply with Article 46 et seq.”274
The Court’s full opinion chose not to address certain questions. Did Herbert
Haupt lose his U.S. citizenship because “he elected to maintain German allegiance
and citizenship?”275 The Court found it unnecessary to decide that issue. It also
made it clear that it was not concerned “with any question of guilt or innocence of
petitioners.”276 It decided that President Roosevelt had exercised authority “conferred
upon him by Congress,” as well as whatever authority the Constitution granted the
Could the President act independently under his interpretation of inherent or
implied power, even to the extent of acting contrary to congressional policy as
expressed in statute? The Court blocked that inquiry: “It is unnecessary for present
purposes to determine to what extent the President as Commander in Chief has
constitutional power to create military commissions without the support of
The Court distinguished between “lawful combatants” (uniformed soldiers) and
“unlawful combatants” (enemies who enter the country in civilian dress). The
former, when captured, are detained as prisoners of war. The latter, said the Court,
are subject to trial and punishment by military tribunal.279 Although the Court
declined to address Haupt’s status as a U.S. citizen, it made it clear that U.S.
Letter from Stone to Frankfurter, September 10, 1942, Felix Frankfurter Papers, Library
Ex parte Quirin, 317 U.S. at 46-47.
“Memorandum of Mr. Justice Frankfurter, In re Saboteur Cases,” Papers of William O.
Douglas, Box 77, Library of Congress (emphasis in original).
Ex parte Quirin, 317 U.S. at 20.
Id. at 25.
Id. at 28.
Id. at 29.
Id. at 30-31.
citizenship of an enemy belligerent “does not relieve him from the consequences of
a belligerency which is unlawful because in violation of the law of war.”280
As for Ex parte Milligan, the Court drew a distinction between the facts of that
case and the Nazi saboteurs. Milligan was a U.S. citizen who had resided in Indiana
for 20 years; he did not reside in any of the rebellious states and was not an enemy
combatant entitled to POW status or subject to the penalties imposed on unlawful
belligerents.281 He was a “non-belligerent, not subject to the law of war.”282
Did Roosevelt’s proclamation and military order conflict with Articles 38, 43,
46, 50½, and 70? The Court held that the secrecy surrounding the trial and
proceedings before the tribunal “will preclude a later opportunity to test the
lawfulness of the detention.”283 Secrecy denied the Justices essential information, but
over time the record of the tribunal would become available and cast doubt on the
The Court was unanimous in deciding that the Articles in question “could not
at any stage of the proceedings afford any basis for issuing the writ.”284 Although of
one mind on that point, the Justices divided on the legal reasoning: “a majority of the
full Court are not agreed on the appropriate grounds for decision.” Some Justices
believed that Congress did not intend the Articles of War to govern a presidential
military tribunal convened to try enemy invaders. Others concluded that the military
tribunal was governed by the Articles of War, but that the Articles in question did not
foreclose the options selected by President Roosevelt.285
Evaluating the Decision
The popular press generally gave great credit to the Court for hearing and
deciding the case. An editorial in the Washington Post said that “Americans can
have the satisfaction of knowing that even in a time of great national peril we did not
stoop to the practices of our enemies.”286 The New York Times predicted that the full
opinion, “which will be made public later on, will go into our constitutional history
besides the Milligan decision, delivered in 1866.”287 The Times added: “We had to
try them because a fair trial for any person accused of crime, however apparent his
Id. at 37.
Id. at 45.
Id. at 47.
“Justice Is Done,” Washington Post, Aug. 9, 1942, at 6.
“Motions Denied,” New York Times, Aug. 1, 1942, at 10.
guilt, is one of the things we defend in this war.”288 Much of the scholarly comment
appeared after the per curiam but before the full opinion.289
The most penetrating analysis of Quirin was prepared by Frederick Bernays
Wiener, Frankfurter’s former student at Harvard Law School but by 1942 a national
expert on military law. Wiener’s three analyses, sent to Frankfurter on November 5,
1942 and January 13 and August 1 of 1943, found serious deficiencies with the
decision. The first letter credits the Court for taking “the narrowest — and soundest
— ground” by holding that the German saboteurs were “war criminals (or unlawful
belligerents) as that term is understood in international law” and that, “under
established American precedents dating back through the Revolution, violators of the
laws of war are not entitled, as a matter of constitutional right, to a jury trial.”290
Wiener complimented the Court for confronting some of the “extravagant dicta” in
the majority’s opinion in Milligan, and agreed with the Court that Haupt’s citizenship
was irrelevant in deciding the tribunal’s jurisdiction to try him.”291
At the same time, Wiener criticized the Court for creating “a good deal of
confusion as to the proper scope of the Articles of War insofar as they relate to
military commissions.” Weaknesses in the decisions flowed “in large measure” from
the administration’s disregard for “almost every precedent in the books” when it
established the military tribunal.292 He “parted company” with the Court’s “careless
or uninformed handling” of the Articles of War. During the Civil War, he said,
tribunals had repeatedly and improperly assumed jurisdiction over offenses better
handled by courts-martial.293
To Wiener, it seemed “too plain for argument” that Article 46 required “legal
review of a record of trial by military commission before action thereon by the
reviewing authority; that the President’s power to prescribe rules of procedure did not
permit him to waive or override this requirement; that he did in fact do so; and that
he disabled his principal legal advisers [the Judge Advocate General] by assigning
to them the task of prosecution.”294 Wiener denied that Roosevelt’s actions could be
justified under his powers as Commander in Chief or by invoking implied or inherent
executive authority: “I do not think any form of language, or any talk about the
President’s inherent powers as Commander in Chief, is sufficient to justify that
portion of the precept, which, in my considered judgment, was palpably illegal.”295
“They That Take the Sword,” New York Times, Aug. 9, 1942, at 10.
See CRS Report RL31340, Military Tribunals: The Quirin Precedent, by Louis Fisher,
“Observations of Ex parte Quirin,” at 1, signed “F.B.W.” Frankfurter Papers.
Id. at 4.
Id. at 8.
Writing in 1947, constitutional scholar Edward S. Corwin viewed Quirin as
“little more than a ceremonious detour to a predetermined end.”296 Alpheus Thomas
Mason, in his book on Chief Justice Stone and in a law review article, explained
Stone’s dilemma in drafting an opinion that would do the least damage to the
judiciary. The Court could do little other than uphold the jurisdiction of the tribunal,
being “somewhat in the position of a private on sentry duty accosting a commanding
general without his pass.”297 Stone was well aware that the judiciary was “in danger
of becoming part of an executive juggernaut.”298
In 1953, when the Court was considering whether to sit in summer session to
hear the espionage case of Ethel and Julius Rosenberg, someone recalled that the
Court had sat in summer session in 1942 to hear the saboteur case. Frankfurter
wrote: “We then discussed whether, as in Ex parte Quirin, 317 U.S. 1, we might not
announce our judgment shortly after the argument, and file opinions later, in the fall.
Jackson opposed this suggestion also, and I added that the Quirin experience was not
a happy precedent.”299 In an interview on June 9, 1962, Justice Douglas expressed
his misgivings with the process: “The experience with Ex parte Quirin indicated, I
think, to all of us that it is extremely undesirable to announce a decision on the merits
without an opinion accompanying it. Because once the search for the grounds, the
examination of the grounds that had been advanced is made, sometimes those
To Michal Belknap, Chief Justice Stone went to “such great lengths to justify
Roosevelt’s proclamation” that he preserved the “form” of judicial review while
“gutt[ing] it of substance.”301 David J. Danelski regarded the full opinion in Quirin
as “a rush to judgment, an agonizing effort to justify a fait accompli.”302 The opinion
signaled a victory for the executive branch but, for the Court, “an institutional
defeat.”303 The lesson for the Court is to “be wary of departing from its established
rules and practices, even in times of national crisis, for at such times the Court is
especially susceptible to co-optation by the executive.”304
Edward S. Corwin, Total War and the Constitution 118 (1947).
Alpheus Thomas Mason, “Inter Arma Silent Leges: Chief Justice Stone’s Views,” 69
Harv. L. Rev. 806, 830 (1956).
Id. at 831. These views would also appear in Mason’s book, Harlan Fiske Stone: Pillar
of the Law 665-66 (1956).
“Memorandum Re: Rosenberg v. United States, Nos. 111 and 687, October Term 1952,”
June 4, 1953, at 8; Frankfurter Papers, Harvard Law School, Part I, Reel 70, Library of
Conversation between Justice William O. Douglas and Professor Walter F. Murphy, June
9, 1962, at 204-05; Seeley G. Mudd Manuscript Library, Princeton University.
Michal R. Belknap, “The Supreme Court Goes to War: The Meaning and Implications
of the Nazi Saboteur Case,” 89 Mil. L. Rev. 59, 83 (1980).
David J. Danelski, “The Saboteurs’ Case,” 1 J. Sup. Ct. Hist. 1966, at 61.
Id. at 80.
Another Submarine in 1944
In 1944, Nazi Germany brought other saboteurs to the United States by
submarine, this time landing two on the coast of Maine. Like the earlier eight, the
two men had a falling out and were picked up by the FBI in New York City, William
Colepaugh on December 26 and Erich Gimpel four days later. Initially, it appeared
that they would be tried in the same manner as in 1942: by a military tribunal sitting
on the fifth floor of the Justice Department, and with Biddle and Cramer leading the
Secretary of War Stimson, who had objected in 1942 to Biddle and Cramer
acting as prosecutors, this time intervened forcefully to block their participation. In
his diary, Stimson expressed contempt for Biddle’s need for the spotlight: “It is a
petty thing. That little man is such a small man and so anxious for publicity that he
is trying to make an enormous show out of this performance — the trial of two
Stimson was successful in persuading Roosevelt to shift the burden to
professionals in the military. On January 12, 1945, Roosevelt issued a military order
that empowered the commanding generals, under the supervision of the Secretary of
War, to appoint military tribunals for the trial of Colepaugh and Gimpel. Unlike
1942, the trial record would not go directly to the President. The review would be
processed within the Judge Advocate General’s office: “The record of the trial,
including any judgment or sentence, shall be promptly reviewed under the procedures
established in Article 50½ of the Articles of War.”307
Appointments to the seven-man tribunal were made by Maj. Gen. Thomas A.
Terry, commander of the Second Service Command. He also selected the officers
to serve as prosecutors and defense counsel. In addition to the military personnel,
two lawyers from the Justice Department assisted with the prosecution.308 Biddle had
no role as prosecutor, and Cramer was limited to his review function within the JAG
office. The trial took place not in Washington, D.C. but at Governors Island, New
On February 14, 1945, the tribunal sentenced Colepaugh and Gimpel to death
by hanging. The verdicts and sentencing went to General Terry, as the appointing
office, and from there to the Judge Advocate General’s office.310 President Roosevelt
died on April 12, before the executions could be carried out. On May 8, President
Fisher, Nazi Saboteurs on Trial, at 138-44. Gimpel wrote a book on his experience.
First published in Great Britain under the title Spy for Germany, it was published in the
United States in 2003 and retitled Agent 146: The True Story of Nazi Spy in America.
Diary of Henry L. Stimson, Jan. 5, 1945, Roll 7, at 18-19, Library of Congress.
10 Fed. Reg. 548 (1945).
“2 Spy Suspects Given to Army for Trial,” New York Times, Jan. 19, 1945, at 14.
“Spy Trials Open Today,” New York Times, Feb. 6, 1945, at 5.
“2 Spies Sentenced to Die by Hanging,” New York Times, Feb. 15, 1945, at 1.
Harry Truman announced the end of the war in Europe, and the following month he
commuted the death sentences to life imprisonment.311 In 1955, the U.S. government
released Gimpel and deported him to Germany.312 Colepaugh, without success,
initiated a habeas corpus action from prison, arguing that he should not have been
tried by a military tribunal.313 He was paroled in 1960.314
Other World War II Tribunals
Other military tribunals were used during and shortly after World War II. With
martial law in Hawaii, traditional constitutional privileges, including the writ of
habeas corpus and the right to be tried in civil court, were set aside. Tribunals were
used to try and convict enemy war criminals, raising principles of command
responsibility that would later be altered when judging American commanders in
Martial Law in Hawaii
After the December 7, 1941 attack on Pearl Harbor by Japan, Governor Joseph
B. Poindexter issued a proclamation transferring all governmental functions
(including judicial) to the Commanding General of the Hawaiian Department. He
called upon the Commanding General to prevent an invasion and to suspend the
privilege of the writ of habeas corpus.315 On that same day, the Commanding
General assumed the role of “Military Governor” and created two forms of military
tribunal to try any case involving an offense against federal law, Hawaiian law, “or
the rules, regulations, orders or policies of the military authorities.” These military
courts included provost courts, which were authorized to impose fines up to $5,000
and imprisonment for up to five years, and a military tribunal empowered to decide
more severe sentences, including the death penalty.316 The Commanding General
cabled President Roosevelt about the declaration of martial law and the suspension
of the writ of habeas corpus and received Roosevelt’s approval.317
Several challenges to martial law and the suspension of habeas corpus reached
the federal courts. One involved a petition for a writ filed on February 19, 1942, by
Clara Zimmerman, who claimed that her husband, Hans, had been unlawfully
“Truman Commutes to Life Terms Death Sentences of Two Spies,” New York Times,
June 24, 1945, at 1.
“‘44 Nazi Spy Landed in U-boat is Deported to West Germany,” New York Times, Aug.
13, 1955, at 15.
Colepaugh v. Looney, 235 F.2d 429 (10th Cir. 1956), cert. denied, 352 U.S. 1014 (1957).
Richard Willing, “An American Was the Nazi Spy Next Door,” USA Today, Feb. 28,
2002, at 2A.
Garner Anthony, “Martial Law in Hawaii,” 30 Cal. L. Rev. 371, 371-72, 392-93 (1942).
Id. at 393-94.
Garner Anthony, “Martial Law, Military Government and the Writ of Habeas Corpus in
Hawaii,” 31 Cal. L. Rev. 477, 478 (1943).
detained and imprisoned by military authorities. Both were U.S. citizens. District
Judge Delbert E. Metzger denied the writ on the ground that military orders had
forbade its issuance: “I feel that the court is under duress by reason of the order and
not free to carry on the functions of the court in a manner in which the court
conceives to be its duty.”318
On December 14, 1942, the Ninth Circuit affirmed the denial of the petition,
holding that the Governor of Hawaii was authorized to suspend until further notice
the privilege of the writ of habeas corpus. The court relied on Section 67 of the
Hawaiian Organic Act.319 Although no charges had been filed against Zimmerman,
the military kept him in prison. The Ninth Circuit said that civil courts, “in
circumstances like the present, ought to be careful to avoid idle or captious
interference.”320 Civil courts “are ill adapted to cope with an emergency of this kind.
As a rule they proceed only upon formal charges.” Under this reasoning, so long as
the government pressed no charges, it could hold Zimmerman indefinitely, or at least
to the end of martial law.
In a dissent to the Ninth Circuit ruling, Judge Bert Emory Haney said that
military government “is not expressly recognized in the Constitution and is wholly
and entirely contrary to the form of government provided for therein.”321
Government by a commanding officer, he noted, “is of course not government by
executive, legislative and judicial branches, the kind of government provided for in
the Constitution.”322 To the extent that a military government could exist by reason
of “necessity,” the question of whether a particular military action was necessary
represented a “question of fact” that courts were competent to judge, “depending on
the existence of facts in the territory.”323 Later, the Supreme Court denied review on
the ground that the case was moot, “it appearing that Hans Zimmerman . . . has been
released from the respondent’s custody.”324
In August 1942, Ingram M. Stainback replaced Poindexter as Governor. The
United States had carried off the very successful Battle of Midway in June 1942,
inflicting such heavy damage on the Japanese fleet that it was commonly understood
that the danger of a land invasion of Hawaii no longer existed. Stainback was intent
Anthony, “Martial Law, Military Government and the Writ of Habeas Corpus in
Hawaii,” 32 Cal. L. Rev. at 485.
Ex parte Zimmerman, 132 F.2d 442, 444 (9th cir. 1942). The Organic Act, passed by
Congress in 1900, provided in Section 67 that in case of rebellion or invasion, “or imminent
danger thereof, when the public safety requires it,” the Governor may “suspend the privilege
of the writ of habeas corpus, or place the Territory, or any part thereof, under martial law,
until communication can be had with the President and his decision thereon made known.”
31 Stat. 153, Sec. 67 (1900).
Ex parte Zimmerman, 132 F.2d at 446.
Id. at 449.
Id. at 450.
Zimmerman v. Walker, 319 U.S. 744 (1943).
on shifting political power from martial law to civilian authority.325 Shortly after his
inauguration, military authorities issued a general order on August 31, returning to
the Hawaiian courts “criminal prosecutions and civil litigation to the extent that war
conditions permit.” The privilege of habeas corpus remained suspended, however,
and martial law still prevailed. The general order specified the type of criminal
proceeding and civil suit that would remain within the jurisdiction of the military.326
A compromise worked out between the Interior and Justice Departments shifted a
number of functions to the civil government.327
Proclamations on February 8, 1943, signed by both the Governor and the
Commanding General, restored much of civil authority to Hawaii. With regard to
violations of territorial law and federal law, trial by jury and indictment by grand jury
in the civil courts replaced the provost courts and military tribunals. Nevertheless,
Stainback’s proclamation included language that “a state of martial law remains in
effect and the privilege of the writ of habeas corpus remains suspended.”328 Judicial
proceedings were restored, both criminal and civil, except (1) criminal prosecutions
against members of the armed forces, (2) civil suits against members of the armed
forces, and (3) criminal prosecutions for violations of military orders. The
Commanding General could waive the last exception for a particular prosecution or
Judge Metzger confronted the military’s detention of two men, Walter Glockner
and Erwin R. Seifer. Both were Americans of German descent and had been held for
the military for some time. When petitions for writs of habeas corpus were filed on
their behalf, the U.S. attorney argued that the petitions should be dismissed. Metzger
denied the government’s motion partly on the ground that the proclamation issued
by Stainback on February 8, 1943 had restored both civil government and the writ.330
In July 1943, Metzger issued a writ of habeas corpus to have the two men produced
in court. When the military refused, he fined the Commanding General, Robert C.
Richardson, Jr., $5,000 for contempt. The contempt citation found Richardson in
“open and notorious defiance of the mandate of the court.”331 The face-off recalls the
confrontation between Judge Hall and Andrew Jackson.
Richardson upped the ante by issuing an order that prohibited habeas corpus
proceedings, directed Metzger to purge the court’s records of the contempt citation,
and threatened to punish him either through the provost courts or the military
J. Garner Anthony, Hawaii Under Army Rule 22 (1955).
Id. at 159-60.
Id. at 22-23; Fred L. Israel, “Military Justice in Hawaii, 1941-44,” 36 Pac. Hist. Rev. 243
Anthony, “Martial Law, Military Government and the Writ of Habeas Corpus in
Hawaii,” 31 Cal. Rev. Rev. at 482, 508-11.
Id. at 509 (section (i)) and 510 (section (j)).
Walter P. Armstrong, “Martial Law in Hawaii,” 29 Am. Bar Ass’n J. 698, 698 (1943).
Anthony, “Martial Law, Military Government and the Writ of Habeas Corpus in
Hawaii,” 31 Cal. L. Rev. at 488.
tribunal.332 As the dispute escalated, Richardson set Glockner and Seifer free on the
condition that they leave Hawaii.333 The Justice Department rushed in and convinced
Richardson to rescind his order, which was done, and asked Metzger to expunge the
contempt judgment and remit the fine. He declined to do that, but did reduce the fine
to $100, which President Roosevelt later canceled through a pardon.334
Metzger wrote about paying a price for asserting an independent voice. As a
territorial judge, he was appointed to the Hawaiian trial court in 1934 for a term of
four years and was reappointed in 1938. The following year he received a six-year
appointment to the U.S. district court. In 1945 he was reappointed but failed of
reappointment at the end of the Truman Administration.335
Other cases of civilians tried by military courts followed. Harry E. White, a
U.S. citizen, was arrested by the military and brought before the provost court on a
charge of embezzlement. His trial began and ended on the afternoon of August 25,
1942, leading to a guilty judgment and a sentence of five years in prison. Although
no appeal from a provost court judgment was allowed, the sentence was later reduced
to four years.336
White’s trial took placed after the Battle of Midway, which removed the threat
of a land invasion of Hawaii. Several judges of the Hawaiian territorial courts
stipulated that their courts were open and fully capable of taking and deciding
cases.337 Midway helped strengthen the effort to restore civil authority.
U.S. District Judge J. Frank McLaughlin ruled that even if a valid state of
martial law existed in Hawaii in August 1942, White had been deprived of his
constitutional rights under the Fifth and Sixth Amendments. In holding that the
provost court lacked jurisdiction either over White or the subject matter of his case,
McLaughlin relied on both Milligan and Quirin to insist that courts in time of war or
peace have an obligation to preserve the safeguards of civil liberty.338 He also denied
that Poindexter had any authority on December 7, 1941 to transfer or delegate the
judicial power to the military.339 Building on those positions, McLaughlin granted the
writ and discharged White.
Id. at 511-14.
Id. at 490.
Claude McColloch, “Now It Can Be Told: Judge Metzger and the Military,” 35 Am. Bar.
Ass’n J. 365 (1949).
Delbert Metzger, “No Longer a Judge: An Ex-Jurist Tells Why,” The Nation, July 18,
1953, at 52.
The specifics of the provost court action are described in Ex parte White, 66 F.Supp.
982, 984 (D. Hawaii 1944).
Id. at 985.
Id. at 986-87.
Id. at 987.
Judge McLaughlin also handled the case of Fred Spurlock, a black American
brought before a provost court and charged with assaulting a civilian policeman. The
court found him guilty and sentenced him to five years in prison. After he pleaded
for leniency, the court placed him on probation. When he got in trouble again, the
provost court sentenced him to five years at hard labor. That time was later reduced
by the Military Governor to two and a half years. Even though Spurlock’s problems
preceded the Battle of Midway, McLaughlin ruled that the provost court lacked
jurisdiction either over Spurlock or the charge brought against him, and that the
conviction was thus null and void.340
Although Spurlock’s conduct preceded Midway, McLaughlin did not issue his
decision until June 23, 1944. In a brief per curiam, the Ninth Circuit reversed him,
basing its decision on the Duncan case, discussed next.341 After other Hawaiian
martial law cases had been accepted by the Supreme Court, General Richardson
intervened to grant Spurlock a pardon.342
Lloyd Duncan, a civilian shipfitter employed at the Navy Yard at Honolulu, was
tried and sentenced to imprisonment by a provost court for assaulting two Marine
sentries on duty at the Navy Yard. By the time the case reached Judge Metzger,
Governor Stainback had issued his proclamation of February 8, 1943, restoring some
powers and functions to civilian agencies, including civil and criminal courts.343
Metzger decided that martial law could not override civilian institutions unless
Congress passed specific authorizing legislation.344 He also held that the Organic Act
gave Governor Poindexter no power to transfer or abdicate his authority to military
officials,345 and that martial law did not lawfully exist in Hawaii in 1943, particularly
after March 10, 1943 (the effective date of Stainback’s proclamation).346
On November 1, 1944, the Ninth Circuit reversed this decision and also the
ruling by Judge McLaughlin in Harry White’s case.347 It held that the proclamation
of February 8, 1943, did not have the effect of terminating the suspension of the
privilege of the writ of habeas corpus. Moreover, to the extent that military orders
had restored some power to local courts, it would be “a perversion of the truth to say
that the courts were ‘open’ during this period — certainly they did not function as a
coordinate or independent branch of the government. So far as they were permitted
to operate they did so ‘as agents of the Military Governor.’”348 On February 12, 1945,
Ex parte Spurlock, 66 F.Supp. 997, 1003 (D. Haw. 1944).
Steer v. Spurlock, 146 F.2d 652 (9th Cir. 1944).
92 Cong. Rec. A4673 (1946).
Ex parte Duncan, 66 F.Supp. 976, 979 (D. Haw. 1944).
Id. at 980.
Id. at 981.
Ex parte Duncan, 146 F.2d 576 (9th cir. 1944).
Id. at 579.
the Supreme Court granted cert to hear the Duncan and White cases.349 It did not
issue a decision until a year later, after the war was over. Thus, the wartime legal
scrutiny of martial law in Hawaii functioned entirely at the level of district courts and
the Ninth Circuit.
In 1946, the Supreme Court held that Section 67 of the Organic Act authorized
the Governor of Hawaii, with the approval of the President, to “invoke military aid
under certain circumstances,” but Congress “did not specifically state to what extent
the army could be used or what power it could exercise. It certainly did not explicitly
declare that the Governor in conjunction with the military could for days, months or
years close all the courts and supplant them with military tribunals.”350 The term
martial law in Section 67 “carries no precise meaning.”351 The Court rejected the
argument of the Justice Department that the legislative history of Section 67 revealed
congressional intent “to give the armed forces extraordinarily broad powers to try
civilians before military tribunals.”352 Military trials of civilians charged with crimes,
“especially when not made subject to judicial review, are so obviously contrary to our
political traditions and our institution of jury trials in courts of law, that the tenuous
circumstances offered by the Government can hardly suffice to persuade us that
Congress was willing to enact a Hawaiian supreme court decision [from 1895]
permitting such a radical departure from our steadfast beliefs.”353
In reviewing the development of government institutions in America, the Court
pressed home the fundamental principle that courts “and their procedural safeguards
are indispensable to our system of government,” and that the framers “were opposed
to governments that placed in the hands of one man the power to make, interpret and
enforce the laws.”354
Trials of Three Japanese Leaders
The Supreme Court also reviewed the use of military tribunals to judge the
wartime conduct of two Japanese generals — Tomoyuki Yamashita and Masaharu
Homma — and Foreign Minister Koki Hirota. Judicial review of military trials
during World War II rarely touched the operations of allied military tribunals created
in the Far East, leading to the execution of 920 Japanese and to prison terms for some
3,000. An International Military Tribunal in Toyko, sitting from 1946 to 1948, tried
and sentenced 25 prominent Japanese war criminals, including Prime Minister Hideki
Duncan v. Kahanamoku; White v. Steer, 324 U.S. 833 (1945).
Duncan v. Kahanamoku, 327 U.S. 304, 315 (1946).
Id. at 316.
Id. at 317.
Id. at 322.
Philip R. Piccigallo, The Japanese on Trial: Allied War Crimes Operations in the East,
1945-1951 xi (1979).
Yamashita and Homma were charged with permitting atrocities against civilians
and prisoners of war. The question before the tribunal was whether they were
responsible for the crimes. The Nazi saboteur cases of 1942 and 1945 recognized
that theater commanders could set up military tribunals and try those who violate the
law of war. As commander of the Far Eastern theater, General Douglas MacArthur
directed Lt. Gen. Wilhelm D. Styer to establish the tribunal for Yamashita, and it was
Styer who appointed the prosecutors, defense counsel, and members of the
tribunal.356 MacArthur retained control over the charges to be leveled against the
accused and the rules that would govern tribunal procedures.357
Yamashita was charged as a war criminal on September 25, 1945. Prosecutors
accused him, as commanding general of the Japanese 14th Army Group in the
Philippines, of failing to prevent his troops from committing atrocities against the
civilian population and prisoners of war. Homma faced similar charges. They would
be prosecuted not for what they did but for what they failed to do, not for what they
knew but what they should have known. MacArthur’s aides, tasked with drafting
plans for a military tribunal, realized that there was no precedent for charging a field
commander “with the negligence of duty in controlling his troops.”358 None of the
charges established a direct link between Yamashita and the underlying criminal
General Styer appointed six U.S. army officers to defend Yamashita. They had
only three weeks to prepare for trial, locate witnesses, and conduct research on 123
charges.360 Five American generals sat on the tribunal, none of them lawyers.361 One
of the generals was designated a “law member” but he was not a lawyer.362 Only one
of the generals had extensive combat command experience.363
When the trial began on October 29, 1945, a defense counsel for Yamashita
argued that the charges set forth “no instance of neglect of duty” by him, no acts of
commission or omission that “permitted” the crimes, and that American
jurisprudence did not hold a commanding officer responsible for the criminal acts of
subordinates.364 The prosecution responded that the crimes were so flagrant that
“they must have been known” to Yamashita, and that if he did not know “it was
Richard L. Lael, The Yamashita Precedent: War Crimes and Command Responsibility,
71, 73 (1982).
Id. at 73.
Id. at 69.
Id. at 80.
Id. at 81.
J. Gordon Feldhaus, “The Trial of Yamashita,” 15 S. Dak. B. J. 181, 185 (1946).
George F. Guy, “The Defense of Yamashita,” 4 Wyo. L. J. 153, 161 (1950).
Stephen B. Ives, Jr., “Vengeance Did Not Deliver Justice,” Washington Post, Dec. 30,
2001, at B2; Lael, The Yamashita Precedent, at 88.
Lael, The Yamashita Precedent, at 82.
simply because he took affirmative action not to know.”365 Two prosecution
witnesses attempted to link Yamashita to the atrocities, but the first depended on
hearsay and the second’s testimony was rebutted by a defense witness. Both
prosecutions witnesses had much to gain personally and financially by cooperating
with U.S. officials.366
On December 7, 1945, the tribunal found Yamashita guilty as charged and
sentenced him to death by hanging. Twelve international correspondents covering
the trial voted 12 to zero that Yamashita should have been acquitted.367 His counsel
filed an unsuccessful appeal to the Philippine Supreme Court, which ruled that it
lacked jurisdiction over the U.S. army. Defense counsel telegraphed a request to the
U.S. Supreme Court for a stay of execution, which was granted.368
The Supreme Court divided 6-2 in upholding the tribunal’s actions. Writing for
the majority was the author of Quirin, Chief Justice Harlan Fiske Stone. He
emphasized that the Court was “not here concerned with the power of military
commissions to try civilians,” citing Milligan for authority.369 Nor did the Court
attempt to appraise or weigh the evidence introduced at trial, concluding that such
matters were wholly within the competence of the tribunal.370
The first point raised by the defense was that the cessation of hostilities denied
MacArthur the authority to create the tribunal. Stone ruled that the executive branch
could try individuals who committed violations of the law of war before the
cessation, “at least until peace has been officially recognized by treaty or
proclamation of the political branch of the Government.”371 In response to the claim
by the defense that the tribunal failed to charge Yamashita with a violation of the law
of war, Stone found that the charges constituted violations of the law of war, and that
Yamashita’s failure to control his troops deserved inclusion in the law of war.
Several provisions of the Fourth Hague Convention of 1907, the Tenth Hague
Convention, and the Geneva Red Cross Convention required that troops be
“commanded by a person responsible for his subordinates.”372 Language of that
breadth, however, does not necessarily mean that a commander is liable for criminal
action by subordinates.
A third point raised by the defense was that the procedures followed by the
tribunal, including the admission of hearsay as evidence, deprived Yamashita of a fair
Id. at 83.
Id. at 84-85.
Piccigallo, The Japanese on Trial, at 57.
Id. at 173.
In re Yamashita, 327 U.S. 1, 9 (1946).
Id. at 17.
Id. at 12.
Id. at 15-16. The quoted language comes from Article 1 of the Fourth Hague Convention;
36 Stat. 2295 (1907).
trial. Article of War 38 provided that the President could prescribe the procedures
for courts-martial, courts of inquiry, military commissions, and other military
tribunals and shall apply the rules of evidence “generally recognized in the trial of
criminal cases in the district courts of the United States.” Hearsay is not admissible
in federal courts. Yet Stone concluded that Article 38 was not “applicable to the trial
of an enemy combatant by a military commission for violations of the law of war.”373
He pointed to other Articles to show that the procedural safeguards were meant to
apply to U.S. soldiers and personnel that accompany the U.S. military, not to enemy
combatants.374 By admitting hearsay and other procedures that would not be allowed
in federal court, Stone said the tribunal did not violate “any act of Congress, treaty
or military command defining the commission’s authority.”375
A fourth point raised by the defense was that the tribunal failed to give advance
notice of the trial to a neutral power representing the interests of Japan, as required
by Article 60 of the Geneva Convention. Stone concluded that the requirement for
notice applies only to persons subjected to judicial proceedings for offenses
committed while prisoners of war.376 It was his judgment that Yamashita’s trial did
not violate the requirement for notice.
Justices Frank Murphy and Wiley Rutledge issued lengthy dissents. Murphy
charged that Yamashita’s rights under the Due Process Clause of the Fifth
Amendment had been “grossly and openly violated without any justification.”377 The
Due Process Clause, Murphy pointed out, applies to “any person” who is accused of
a federal crime. No exception “is made as to those who are accused of war crimes
or as to those who possess the status of an enemy belligerent.”378 Murphy said that
Yamashita had been “rushed to trial under an improper charge, given insufficient
time to prepare an adequate defense, deprived of the benefits of some of the most
elementary rules of evidence and summarily sentenced to be hanged.”379
Rutledge concluded that the proceedings and rules of evidence of the Yamashita
tribunal violated two Articles of War (25 and 38), both of which, he said, applied to
all military commissions and tribunals.380 Article 25 described the process of taking
depositions, and specified that they may be read in evidence before any military court
or tribunal “in any case not capital.” Article 38 required the President to prescribe
procedures for military courts, with the requirement that the procedures (“insofar as
he shall deem practicable”) shall apply the rules of evidence generally recognized in
Id. at 19.
Id. at 23.
Id. at 24.
Id. at 40.
Id. at 21.
Id. at 27-28.
Id. at 61.
the trial of criminal cases in federal court. Article 38 closed with this admonition:
“nothing contrary to or inconsistent with these articles shall be so prescribed.”
It was not in the American tradition, Rutledge said, “to be charged with crime
which is defined after his conduct, alleged to be criminal, has taken place; or in
language not sufficient to inform him of the nature of the offense or to enable him to
make defense.”381 He distinguished what the Court did in Quirin, in the middle of
war, with the conditions surrounding Yamashita’s trial, after hostilities had ceased.382
A separate section of Rutledge’s dissent concluded that Yamashita’s trial was in
conflict with the Geneva Convention of 1929.383 In a private letter, Rutledge said that
the Yamashita case “will outrank Dred Scott in the annals of the Court.”384
Following the Court’s decision, defense counsel appealed to President Truman
for clemency. He declined to act, leaving the matter in the hands of the military.385
MacArthur confirmed the sentence and on February 23, 1946, in a prison camp 30
miles south of Manila, Yamashita was hanged. A. Frank Reel, a member of the
defense team, concluded that Yamashita “was not hanged because he was in
command of troops who committed atrocities. He was hanged because he was in
command of troops who committed atrocities on the losing side.”386
The military tribunal for General Homma began in Manila on January 3, 1946.
Charges against him included the bombing of Manila after it was declared an open
city, the Bataan Death March of 1942, and POW camp abuses, all of the events
occurring during Homma’s term as commander-in-chief in the Philippines from
December 8, 1941 to August 15, 1942.387 Similar to the Yamashita trial, prosecutors
charged that Homma “knew or should have known” of the commission of the
atrocities.388 The tribunal found Homma guilty on February 11, 1946 for failing to
control the operations of his troops and sentenced him to be hanged. On the same
day, the Supreme Court divided 6-2 in denying the motion for a writ of habeas corpus
to review the tribunal’s action. Justices Murphy and Rutledge were again the
dissenters.389 MacArthur ordered that Homma be shot rather than hanged.390
Koki Hirota was among 28 defendants tried for war crimes before the
International Military Tribunal for the Far East. He served as Prime Minister from
March 9, 1936 to February 2, 1937, and later as Foreign Minister until he retired in
Id. at 43.
Id. at 46.
Id. at 72-78.
John P. Frank, The Marble Palace: The Supreme Court in American Life 137 (1972).
Guy, “The Defense of Yamashita,” 14 Wyo. L. J. at 178.
A. Frank Reel, The Case of General Yamashita 245 (1949) (emphasis in original).
Piccigallo, The Japanese on Trial, at 63.
Id. at 64.
Homma v. Patterson, 327 U.S. 759 (1946).
Lawrence Taylor, A Trial of Generals: Homma, Yamashita, MacArthur 218-19 (1981).
1938. During this last assignment Japanese forces marched into China and
committed the atrocities now known as the Rape of Nanking. During a six-week
period, Japanese troops slaughtered more than a quarter million Chinese.391 While
Hirota was not in charge of the military forces, the issue was whether he knew of the
In 1948, The Supreme Court reviewed the actions of the International Military
Tribunal for the Far East. Although the tribunal had been created by MacArthur, a
6-1 majority ruled that it acted as the agent of the Allied Powers rather than of the
United States, and that it was therefore not a tribunal of the United States. At the
same time, the Court acknowledged that MacArthur “has been selected and is acting
as the Supreme Commander for the Allied Powers,” and that he had set up the
tribunal as the agent of the Allied Powers.393 The Justices held that U.S. courts had
no power or authority to review, affirm, set aside, or annul the judgments and
sentences imposed by the tribunal on the residents and citizens of Japan. A
concurrence by Justice Douglas expressed uneasiness with the decision: “If no United
States court can inquire into the lawfulness of his detention, the military have
acquired, contrary to our traditions (see Ex parte Quirin, 317 U.S. 1; In re Yamashita,
327 U.S. 1), a new and alarming hold on us.”394 Justice Murphy dissented, but
without publishing his views. Justice Rutledge reserved making a decision, allowing
him to announce his vote at a later time. Before he could do that he died on
September 10, 1949. Justice Robert Jackson took no part in the decision. Hirota was
executed on December 23, 1948.
Military actions by U.S. forces in Vietnam raised the question whether
American generals and commanders could be held responsible under the same test
that had been applied to Yamashita, Homma, and Hirota. Within a few years of those
trials, however, American judges moved away from the standard that a commander
“should have known” or “must have known.” The test now shifted to whether a
commander knew of atrocities or showed a wanton disregard of what his
subordinates were doing. In the High Command Case in Nuremberg, in October
1948, a U.S. military tribunal noted that a “high commander cannot keep completely
informed of the details of military operations of subordinates and most assuredly not
of every administrative measure. . . . Criminality does not attach to every individual
in the chain of command from that fact alone. There must be a personal dereliction.
That can occur only where the act is directly traceable to him or where his failure to
properly supervise his subordinates constitutes criminal negligence on his part.” For
Iris Chang, The Rape of Nanking (1997).
John Toland, The Rising Sun 34-35, 42, 48-50 (2003 ed.); Chang, The Rape of Nanking,
at 103-04, 148, 174-75; Arnold C. Brackman, The Other Nuremberg: The Untold Story of
the Toyko War Crimes Trials 180-81, 274, 328-29, 380 (1987); Piccigallo, The Japanese on
Trial, at 30.
Hirota v. MacArthur, 338 U.S. 197, 198 (1948).
Id. at 201-02.
the latter, “it must be a personal neglect amounting to a wanton, immoral disregard
of the action of his subordinates amounting to acquiescence.”395
The court-martial of Captain Ernest L. Medina in 1971 charged him with
responsibility for acts of force and violence while interrogating prisoners of war in
Vietnam and a failure to exercise control over subordinates who killed
noncombatants. The instructions that the military judge issued to the court members
differed markedly from the principle of command responsibility applied to
Yamashita. The judge stated that a commander is responsible “if he has actual
knowledge that troops or other persons subject to his control are in the process of
committing or are about to commit a war crime and he wrongfully fails to take the
necessary and reasonable steps to insure compliance with the law of war.” Mere
presence at the scene “without knowledge” would not suffice. To be found guilty,
it would be essential that a commander “know that his subordinates are in the process
of committing atrocities or are about to commit atrocities.”396
Studies during the Vietnam period rejected the principle of command
responsibility under which Yamashita, Homma, and Hirota were tried. Instead of
asserting that a commander “must have known” or “should have known,” there had
to be a showing of actual knowledge of the crime.397
The Eisentrager Decision
In 1950, the Court received another case testing the legality of military tribunals,
this time raising the issue whether the executive branch can detain, try, and execute
individuals outside the United States without the independent review of federal
courts. Did nonresident enemy aliens, tried and convicted in China by an American
military tribunal for violations of the laws of war, have a right to a writ of habeas
corpus to U.S. civilian courts? Similar to the situation of martial law in Hawaii, a
lower federal court was willing to place limits on the military, while the Supreme
Court was not.
The D.C. Circuit held that any person deprived of liberty by U.S. officials, and
who can show that his confinement violates a prohibition of the Constitution, has a
right to the writ regardless of whether he is a citizen or not. The appellate court
noted that the Fifth Amendment applies broadly to “any person.”398 The court denied
that its decision created a practical problem of transporting the 21 appellants to the
2 Leon Friedman, ed., The Law of War 1450 (1972).
Id. at 1732 (emphasis in original).
Franklin A. Hart, “Yamashita, Nuremberg and Vietnam: Command Responsibility
Reappraised,” 25 Naval War Coll. Rev. 19, 30 (1972). See also William H. Parks,
“Command Responsibility for War Crimes,” 62 Mil. L. Rev. 1 (1973), Kenneth A. Howard,
“Command Responsibility for War Crimes, 21 J. Pub. L. 7 (1972), and William V. O’Brien,
“The Law of War, Command Responsibility and Vietnam,” 60 Geo. L. J. 605 (1972).
Eisentrager v. Forrestal, 174 F.2d 961, 963 (D.C. Cir. 1949).
United States for a hearing, noting that the Supreme Court had decided Quirin
without the personal presence of the German saboteurs.399
A 6-3 majority of the Supreme Court reversed, pointing to factual differences
between the Nazi saboteurs and the 21 appellants. Unlike the eight Germans in
Quirin, these prisoners had never been or lived in the United States, were captured
outside U.S. territory, were tried and convicted by a military tribunal sitting outside
the United States for offenses against laws of law committed outside the United
States, and were at all times imprisoned outside the United States.400 In denying the
writ of habeas corpus and refusing review for these petitioners, the Court looked less
to the constitutional powers of Congress and the President than it did to the meaning
of “any person” in the Fifth Amendment. Writing for the Court, Justice Jackson
remarked that if the Fifth Amendment “invests enemy aliens in unlawful hostile
action against us with immunity from military trial, it puts them in a more protected
position than our own soldiers. . . . It would be a paradox indeed if what the
Amendment denied to Americans it guaranteed to enemies.”401
The analogy here seems overdrawn. American soldiers tried by court-martial
have more procedural protections than aliens tried by military tribunal. The issue
was not whether aliens are entitled to superior rights but what rights they have, if any,
before a tribunal. The Court declined to say. As with other tribunal cases during this
period, Jackson said that it was “not for us to say whether these prisoners were or
were not guilty of a war crime, or whether if we were to retry the case we would
agree to the findings of fact or the application of the laws of war made by the Military
In deciding this type of case, the Court seemed to exclude judicial review of
military tribunals if they were located outside the country. A dissent by Justices
Black, Douglas and Burton accused the Court of fashioning a “wholly indefensible”
doctrine by permitting the executive branch, “by deciding whether its prisoners will
be tried and imprisoned, to deprive all federal courts of their power to protect against
a federal executive’s illegal incarceration.”403 To say that petitioners were denied the
privilege of habeas corpus “solely because they were convicted and imprisoned
overseas” was to adopt “a broad and dangerous principle.”404 The government had
argued that habeas corpus was not available even to U.S. citizens convicted and
imprisoned in Germany by American military tribunals.405
Id. at 968.
Johnson v. Eisentrager, 339 U.S. 763, 77 (1950).
Id. at 783.
Id. at 786.
Id. at 795.
Placing Limits on Military Courts
From 1952 to 1960, the Supreme Court began to consider and adopt restrictions
on military courts, particularly their authority to try U.S. citizens stationed overseas
and members of the military who left the service. The first series of cases involved
civilian dependents located overseas. The government charged Yvette Madsen, a
native-born U.S. citizen, with murdering her husband, an officer in the U.S. Air
Force. She was convicted in Germany by a military commission consisting of three
U.S. citizens, with review by a military appellate panel of five U.S. citizens. Her
sentence was 15 years. In upholding the actions of these military courts, the Supreme
Court examined the relative powers of the President and Congress and concluded that
the President, in the “absence of attempts by Congress to limit the President’s
power,” may in time of war “establish and prescribe the jurisdiction and procedure
of military commissions.”406 The Court further noted: “The policy of Congress to
refrain from legislating in this unchartered area does not imply its lack of power to
Justice Black penned the sole dissent, expressing concern for the concentration
of power within the executive branch: “Executive officers acting under presidential
authority created the system of courts that tried her, promulgated the edicts she was
convicted of violating, and appointed the judges who took away her liberty.”408 He
said that whatever scope is granted to the President as Commander in Chief of the
armed forces, “I think that if American citizens in present-day Germany are to be
tried by the American Government, they should be tried under laws passed by
Congress and in courts created by Congress under its constitutional authority.”409
Subsequent decisions began to narrow the broad scope given to military trials.
In 1955, the Court reviewed the court-martial of an ex-serviceman after he had served
in Korea, been honorably discharged, and returned to the United States. Initially the
Justices supported the military, but Justice Black led the dissenters to insist that the
case be reargued, particularly after the confirmation of John Marshall Harlan as
Associate Justice. After scheduling the rehearing, Chief Justice Earl Warren
announced at conference that he had changed his position, thus shifting the majority
Writing for the Court, Justice Black invoked Article III and the Bill of Rights
to place restrictions on what Congress could do under its Article I powers and what
Presidents may do as Commander in Chief in asserting military authority over
Madsen v. Kinsella, 343 U.S. 341, 348 (1952).
Id. at 348-49.
Id. at 372.
Bernard Schwartz, Super Chief 180-81 (1983).
citizens. The Court ruled that ex-servicemen must be tried by federal civil courts.411
Although the case focused on a court-martial, its reasoning can apply to military
tribunals: “We find nothing in the history or constitutional treatment of military
tribunals which entitles them to rank along with Article III courts as adjudicators of
the guilt or innocence of people charged with offenses for which they can be deprived
of their life, liberty or property.”412
A series of lawsuits from 1956 to 1960 tested the constitutionality of using
courts-martial to try civilian dependents of military personnel living overseas. In one
case, the wife of an army colonel was tried by a general court-martial in Toyko for
murdering her husband. After she was found guilty and sentenced to life
imprisonment, the Court found no constitutional deficiency to the proceeding.413 The
decision was issued on June 11, 1956, just as the Court was completing its business
for the term. In a section called a “Reservation,” Justice Frankfurter called attention
to judicial haste: “Doubtless because of the pressure under which the Court works
during its closing weeks,” several arguments “have been merely adumbrated in its
opinion.”414 A dissent by Warren, Black, and Douglas was more blunt: “The
questions raised are complex, the remedy drastic, and the consequences far-reaching
upon the lives of civilians. The military is given new powers not hitherto thought
consistent with our scheme of government. For these reasons, we need more time
than is available in these closing days of the Term in which to write our dissenting
views. We will file our dissents during the next Term of Court.”415
On that same day, the Court held that Clarice Covert could be convicted and
sentenced to life imprisonment by a court-martial in England for the murder of her
husband, an air force sergeant. She was brought to the United States and confined
in a federal prison for women.416 The dissent by Warren, Black and Douglas in the
earlier murdering wife case applied to this case as well.
The dissenters put pressure on the Court to rehear these cases.417 Changes in
Court membership helped shift the balance. Sherman Minton stepped down on
October 15, 1956, with William Brennan taking his seat. The Court was further
liberalized with the retirement of Stanley Reed on February 25, 1957. He was
replaced by Stanley Whittaker.
After granting a petition for rehearing, the Court on June 10, 1957 reversed both
decisions of the murdering wives. Whittaker did not participate in this case. The
Court decided that when the United States acts against its citizens abroad, it must act
in accordance with all the limitations imposed by the Constitution, including Article
Toth v. Quarles, 350 U.S. 11 (1955).
Id. at 17.
Kinsella v. Krueger, 351 U.S.470 (1956).
Id. at 483.
Id. at 485-86.
Reid v. Covert, 351 U.S. 487, 491 (1956).
Schwartz, Super Chief, at 239-43.
III and the Fifth and Sixth Amendments. Citizens must be tried in Article III courts,
not military courts.418 The reasoning is broad enough to cover not only courts-martial
but also military tribunals. Dependents of military personnel overseas “could not
constitutionally be tried by military authorities.”419
While acknowledging that the Court had not yet “definitively established to
what extent the President, as Commander-in-Chief of the armed forces,” can
promulgate the procedures of military courts in time of peace or war, and conceding
that Congress “has given the President broad discretion to provide the rules
governing military trials,” Justice Black struck this cautionary note: “If the President
can provide rules of substantive law as well as procedure, then he and his military
subordinates exercise legislative, executive and judicial powers with respect to those
subject to military trials. Such blending of functions in one branch of the
Government is the objectionable thing which the draftsmen of the Constitution
endeavored to prevent by providing for the separation of governmental powers.”420
Three decisions by the Court in 1960 placed further restrictions on the use of
courts-martial abroad, covering civilian dependents of military personnel and civilian
employees of the armed forces.421 As with Milligan after the Civil War, the Court
waited years after the conclusion of World War II before imposing limits on the use
of military courts.
One other case in the post-World War II period deserves mention. U.S. District
Judge Herbert J. Stern was “appointed” by the U.S. ambassador to the Federal
Republic of Germany to sit on an occupation tribunal called the United States Court
for Berlin. By accepting this assignment, Judge Stern seemed to be functioning as
an agent of the executive branch, but he was soon to show his independence as an
Article III judge.
Judge Stern called the case a criminal proceeding arising out of a hijacking of
a Polish aircraft in 1978 by the defendants. Instead of a scheduled landing in East
Berlin, the plane was forced down in West Berlin. U.S. authorities exercised
jurisdiction over the dispute and convened the United States Court for Berlin.
Defense counsel moved for a trial by jury. The prosecution objected, “contending
that these proceedings are not governed by the United States Constitution, but by the
requirements of foreign policy and that the Secretary of State, as interpreter of that
policy, has determined that these defendants do not have the right to a jury trial.”422
The two defendants were Hans Detlef Alexander Tiede and Ingrid Ruske. On
November 30, 1978, Dudley B. Bonsal, senior U.S. district judge, was sworn in as
United States Judge for Berlin. He limited his participation to the promulgation of
Reid v. Covert, 354 U.S. 1 (1957).
Id. at 5.
Id. at 38-39.
Kinsella v. Singleton, 361 U.S. 234 (1960); McElroy v. Guagliardo, 361 U.S. 281
(1960); Grisham v. Hagan, 361 U.S. 278 (1960).
United States v. Tiede, 86 F.R.D. 227, 228 (U.S. Court for Berlin 1979).
rules of criminal procedure and was succeeded by Leo M. Goodman, former judge
of the United States Court of the Allied High Commission for Germany. Tiede was
brought before Judge Goodman and advised of his rights under the U.S. Constitution.
Because of Tiede’s indigency, Judge Goodman assigned a member of the Berlin
criminal bar to serve as his counsel.
After short stints by Judges Bonsal and Goodman, on January 11, 1979, Judge
Stern became the third United States Judge for Berlin. He appointed American
counsel for the defendants because it was his intention to conduct the trial under
American procedural law, “although German substantive law would apply.”423 When
Judge Bonsal promulgated the rules of criminal procedure for the court, with one
exception he adopted “almost verbatim the Federal Rules of Criminal Procedure and
the Federal Rules of Evidence.” The exception eliminated jury trials as a
The prosecution contended that the U.S. Constitution did not apply to the
proceedings because Berlin was a territory governed by military conquest. Moreover,
everything concerning the conduct of an occupation represented a “political question”
and was thus not subject to review by U.S. courts. The U.S. occupation courts
functioned as an extension of American foreign policy. Whatever rights were
available to individuals brought before the United States Court for Berlin depended
entirely on the decisions of the Secretary of State, and he determined, as a matter of
foreign policy, that the right to a jury trial was not available to the defendants.425
Judge Stern found the arguments of the prosecution “to be entirely without
merit.”426 He cited Ex parte Milligan for this fundamental principle: “There has
never been a time when United States authorities exercised governmental powers in
any geographical area — whether at war or in times of peace — without regard for
their own Constitution.”427 Constitutional officers, including the Secretary of State,
were subject to constitutional limitations when they exercised the powers of their
office. The “applicability of any provision of the Constitution is itself a point of
constitutional law, to be decided in the last instance by the judiciary, not by the
Executive Branch.”428 Judge Stern called attention to this language from Milligan:
[The Framers of the American Constitution] foresaw that troublous times would
arise, when rulers and people would become restive under restraint, and seek by
sharp and decisive measures to accomplish ends deemed just and proper; and that
the principles of constitutional liberty would be in peril, unless established by
irrepealable law. The history of the world had taught them that what was done
in the past might be attempted in the future. The Constitution of the United
States is a law for rulers and people, equally in war and in peace, and covers
Id. at 229.
Id. at 238.
Id. at 238-41.
Id. at 242.
with the shield of its protection all classes of men, at all times, and under all
circumstances. No doctrine, involving more pernicious consequences, was ever
invented by the wit of man than that any of its provisions can be suspended
during any of the great exigencies of government. Such a doctrine leads directly
to anarchy or despotism, but the theory of necessity on which it is based is false;
for the government, within the Constitution, has all the powers granted to it,
which are necessary to preserve its existence; as has been happily proved by the
result of the great effort to throw off its just authority.429 [Emphasis added by
Judge Stern concluded that the position advanced by the prosecution would have
“dramatic consequences” not only for Tiede and Ruske but for every person within
the territorial limits of the U.S. sector of Berlin. Without constitutional limits, no one
in the sector would have any protection from the “untrammeled discretion” of
occupation authorities. If the Constitution did not apply, there would be no First
Amendment, Fifth Amendment, Sixth Amendment, or even the Thirteenth
Amendment’s prohibition of involuntary servitude. Without the Constitution, the
Secretary of State would have the power “to arrest any person without cause, to hold
a person incommunicado, to deny an accused the benefit of counsel, to try a person
summarily and to impose sentence — all as a part of the unreviewable exercise of
In deciding the questions before him, Judge Stern was not concerned with the
procedures that might be used by a U.S. military tribunal trying a case in wartime or
during the belligerent occupation of enemy territory before war terminates.431 The
Tiede case, he said, did not involve spying or a violation of the laws of war, and he
sat not as an international tribunal but as an American court. He placed Tiede and
Ruske in the category of “friendly aliens,” not as enemy nationals, enemy
belligerents, or POWs.432 Judge Stern concluded that the Constitution required that
they be tried by jury, relying extensively on Justice Black’s analysis in the 1957 case
of Clarice Covert.433
Toward the end of the decision, Judge Stern reviewed the prosecution’s
argument that the United States Court for Berlin “is a type of military commission
and defendants tried by a military commission have no right to a jury trial.”434 To
support that contention, the prosecution relied principally on the cases of the Nazi
saboteurs and Yvette Madsen, the U.S. citizen convicted in Germany by a military
commission for murdering her husband. He pointed out that the Court in Quirin
found the eight Germans charged with an offense “against the law of war which the
Id. at 243.
Id. at 244-45.
Id. at 245.
Id. at 249-51.
Id. at 253.
Constitution does not require to be tried by jury,”435 but that Tiede and Ruske were
not charged with violations of the laws of war, nor were they enemy aliens or
associated with the armed forces of an enemy. As for the Madsen case, Judge Stern
noted that the question of her right to a jury trial was never presented nor considered,
she never claimed the right to a jury trial, and had in fact insisted that she be tried by
a general court-martial under the Articles of War, which did not provide for trial by
jury.436 Moreover, when Yvette Madsen was tried, the United States and Germany
were technically still at war.437
Through the express grants of authority in Article I of the Constitution,
Congress is empowered to create and define military courts, both courts-martial and
military tribunals. William Winthrop, the premier 19th century authority on military
law, wrote: “in general, it is those provisions of the Constitution which empower
Congress to ‘declare war’ and ‘raise armies,’ and which, in authorizing the initiation
of war, authorize the employment of all necessary and proper agencies for its due
prosecution, from which this tribunal [the military commission] derives its original
Over the years, statutory actions that adopted and modified the Articles of War
demonstrated congressional power. Executive initiatives were taken at times,
including the tribunals established by General Scott in Mexico, but at every step he
acknowledged Congress as the superior power and conceded that whatever policies
he announced could be countermanded by Congress through the legislative process.
On a number of occasions, the executive branch has claimed that the President,
as Commander in Chief, has independent authority to create military tribunals and
determine their procedures and the penalties meted out. Under this interpretation, the
President may act without congressional authority or even in the face of statutory
restrictions. The Supreme Court has never accepted that argument. Instead, it has
looked to statutory support for tribunals, as it did in the Nazi saboteur case. It
decided that President Roosevelt had exercised authority “conferred upon him by
Congress,” as well as whatever authority the Constitution granted the President.439
Could the President act independently, even in defiance of statutory policy? The
Court found it “unnecessary for present purposes to determine to what extent the
President as Commander in Chief has constitutional power to create military
Id. at 255.
Id. at 256.
Winthrop, Military Law and Precedents, at 831 (emphasis in original).
Ex parte Quirin, 317 U.S. at 28.
commissions without the support of Congressional legislation.”440 In acknowledging
the power of Congress to define the law of war, the Court also recognized that
Congress might not decide to enact specific rules for every occasion: “Congress has
the choice of crystallizing in permanent form and in minute detail every offense
against the law of war, or of adopting the system of common law applied by military
tribunals so far as it should be recognized and deemed applicable by the courts. It
chose the latter course.”441
In 1952, the Court upheld the actions of the President in establishing military
tribunals and determining their jurisdiction and procedure in the “absence of attempts
by Congress to limit the President’s power.” It also noted: “The policy of Congress
to refrain from legislating in this unchartered area does not imply its lack of power
The Court has repeatedly expressed concern about the concentration of power
that would result if the executive branch alone had the power to create military
tribunals. In 1946, it emphasized the important constitutional principle that courts
“and their procedural safeguards are indispensable to our system of government,” and
that the framers “were opposed to governments that placed in the hands of one man
the power to make, interpret and enforce the laws.”443
In the cases that evolved from 1952 to 1957, Justice Black led the Court in
rejecting military trials over civilians. Dissenting in the 1952 Yvette Madsen case,
he objected that executive officers “acting under presidential authority created the
system of courts that tried her, promulgated the edicts she was convicted of violating,
and appointed the judges who took away her liberty.”444 Three years later he wrote
for the Court: “We find nothing in the history or constitutional treatment of military
tribunals which entitles them to rank along with Article III courts as adjudicators of
the guilt or innocence of people charged with offenses for which they can be deprived
of their life, liberty or property.”445 Writing for the Court in 1957, he warned that if
the President “can provide rules of substantive law as well as procedure, then he and
his military subordinates exercise legislative, executive and judicial powers with
respect to those subject to military trials.” Such a concentration of power, he said,
ran counter to the core constitutional principle of separation of powers.446
Other federal judges have reached the same conclusion. U.S. District Judge
Stern, in the Tiede case, rejected the government’s position that the executive branch
can determine by itself the availability of constitutional safeguards, such as the right
to a jury trial. Such power, he said, would allow the government “to arrest any
Id. at 29.
Id. at 30.
Madsen v. Kinsella, 343 U.S. at 348-49.
Duncan v. Kahanamoku, 327 U.S. at 322.
Madsen v. Kinsella, 343 U.S. at 372.
Toth v. Quarles, 350 U.S. at 17.
Reid v. Covert, 354 U.S. at 38-39.
person without cause, to hold a person incommunicado, to deny an accused the
benefit of counsel, to try a person summarily and to impose sentence — all as a part
of the unreviewable exercise of foreign policy.”447
United States v. Tiede, 86 F.R.D. at 243.