Some thoughts on WHY the US COULD still craft military commissions for US citizens

[IlarMeilyr]

Here is an excerpt from an interesting law review article on the topic.

While it is true that the current law, the Military Commission Act as amended in 2009 addresses the authroization for the creation of military commissions exclusively for ALIEN enemy illegal combatants, I have yet to see any law which prohibits or purports to prohibit the creation of a military commission for U.S. citizens similarly charged.

We KNOW that the practice goes back as far as George Washington and that it was also done by President FDR and that it was sanctioned by the SCOTUS.

So I wonder why folks still CLAIM that it would be "against the law" to do it again now?

Here is an excerpt from an interesting law review article on the topic.

1. U.S. Citizens
Quirin clearly establishes that U.S. citizens who act as belligerents may be tried by military commission for violations of the law of war. Nonetheless, as explained below, we caution that there may be some risk that there will be ambiguity concerning the application of Quirin and the distinction the Quirin Court drew between the case before it and Milligan.
As outlined above, the analysis employed in Quirin exempted offenses against the laws of war from the scope of the constitutional guarantees for trial by jury and grand jury indictment for crimes. See supra at 12. The Milligan Court had relied on the same constitutional guarantees to hold that a military commission lacked jurisdiction and suggested that the facts that Milligan was a U.S. citizen and not in military service particularly compelled preserving his right to jury trial. See 71 U.S. at 119 (“t is the birthright of every American citizen when charged with crime, to be tried and punished according to law.”); id. at 118 (emphasizing that Milligan was “not a resident of one of the rebellious states, or a prisoner of war, but a citizen of Indiana for twenty years past, and never in the military or naval service”). The logic of the rationale in Quirin, however, suggests that even a citizen could be tried by military commission if he were properly charged with any violation of the laws of war. It was the nature of the offense—an offense against the laws of war—that removed it from the scope of constitutional provisions for jury trial and grand jury indictment. Thus, the Court noted that it was not status as an alien or citizen that was critical for making the use of a military commission constitutionally permissible. Rather, “offenders were outside the constitutional guaranty of trial by jury, not because they were aliens but only because they had violated the law of war.” 317 U.S. at 44. In fact, Quirin made it explicit that U.S. citizenship alone does not suffice to invoke any limitation from Milligan on the jurisdiction of military commissions. The Court explained that “[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents” and may be tried under the laws of war. Id. at 37-38. As a result, the Court declined even to resolve the claim that one of the eight German saboteurs was actually a U.S. citizen. See id. at 45.
We believe that, properly understood, the constitutional analysis in Quirin demonstrates that any person properly charged with a violation of the laws of war, regardless of citizenship or membership in the armed forces (of this country or another power), may be tried by military commission. The critical point for constitutional analysis is that a person properly charged with an offense against the laws of war has no right to an indictment or trial by jury under Article III or the Fifth and Sixth Amendments. Citizenship and membership in the military are not determinative factors for constitutional purposes. A person can properly be chargeable of an offense against the laws of war (such as spying), after all, without being in the armed forces of a belligerent nation. The critical distinction is the nature of the offense. See United States v. Tiede , 86 F.R.D. 227, 254 (U.S. Ct. Berlin 1979) (“Quirin holds that whether an individual is entitled to a jury trial is determined by the nature of the crime with which he is charged.”).
Offenses triable by the laws of war are not within the constitutional protections attached to criminal trials. As one district court recently held, “nder Quirin , citizens and non-citizens alike—whether or not members of the military, or under its direction or control, may be subject to the jurisdiction of a military commission for violations of the law of war.” Mudd v. Caldera, 134 F. Supp. 2d 138, 145-46 (D.D.C. 2001); see also Colepaugh , 235 F.2d at 432 (“[T]he petitioner’s citizenship in the United States does not divest the Commission of jurisdiction over him, or confer upon him any constitutional rights not accorded any other belligerent under the laws of war.”).
The Supreme Court, however, did not go so far as to hold in Quirin that its constitutional rationale undermined Milligan entirely. Instead, the Court declined to “define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals,” 317 U.S. at 45-46, and stated simply that the holding in Milligan should be construed as “having particular reference to the facts” in that case, id. at 45. The facts that were particularly relevant appear to have been that the saboteur in Quirin who claimed citizenship had engaged in acts that made him a belligerent.
Milligan, in contrast, was not in military service, and the Court stressed that he was not an “enemy belligerent” and, “not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the laws of war.” Id. at 45; see also Milligan , 71 U.S. at 121-22 (emphasizing that Milligan was “a citizen in civil life, in nowise connected with the military service”). Thus, the line that the Court ultimately drew in Quirin to distinguish Milligan may be read to suggest that a citizen (not in the U.S. military) can be tried by military commission when he acts as a belligerent. See 317 U.S. at 37. That condition was most clearly met where citizens “associate themselves with the military arm of the enemy government.” Id.
The distinction suggests that Milligan can be explained on the basis that the actions charged in Milligan did not amount to acts of belligerency. Even under this approach to Quirin, we conclude that in the context of the current conflict, any actions by U.S. citizens that amount to hostile acts against the United States or it citizens (and certainly participation in biological attacks, the attacks of September 11, or similar attacks) would make a person a “belligerent” subject to trial by military commission under Quirin. We caution, however, that applying this standard may raise some ambiguities. The Milligan decision holds out at least the possibility that some charges that may be articulated under the law of war (such as the charge of giving aid and comfort to the enemy used in Milligan ) may not, in some circumstances, amount to acts of belligerency triable by military commission. Exactly which acts place a person in the category of an “enemy belligerent” under Quirin thus may be a subject of litigation. In addition, it might be argued that Quirin should be read as imposing a brighter-line test under which citizens are triable by military commission when they “associate themselves with the military arm of the enemy government.” 317 U.S. at 37.
That standard, it could be claimed, is difficult to apply here because there are no organized armed forces of another belligerent nation facing the United States. For the reasons outlined above, we conclude that such an approach does not reflect the proper constitutional analysis and is not the proper reading of Quirin. Nonetheless, it raises a potential source of litigation risk.
In short, although we conclude that a U.S. citizen found to have engaged in actions that are properly chargeable as offenses under the laws of war could constitutionally be tried by military commission in the United States, we caution that in some circumstances there could be litigation risks involved in establishing the exact application of the Supreme Court’s decisions.

-- from, http://www.gwu.edu/~nsarchiv/torturingdemocracy/documents/20011106.pdf [Note: it was copied from a pdf file which has resulted in messed up formatting. If I have not corrected it properly, see the original.]

 

[AmyNation]

Yes, Obama could create a military commission for american citizens, but as of right now, it doesnt exist. Im not 100% sure what the confusion is. Saying Obama could make it law is not the same as it being law.

 

[AmyNation]

Also, I think any attempt by Obama to craft a MC for american citizens would not go over well, and would eventually go to the Supreme Court. As we saw with the CSRT and the 06' MCA, denying rights to individuals is not easy to get past the SC.

 

[IlarMeilyr]

Yes, Obama could create a military commission for american citizens, but as of right now, it doesnt exist. Im not 100% sure what the confusion is. Saying Obama could make it law is not the same as it being law.

But that has not been the claim.

The claim has been that it would be "against the law."

And that's not correct.

It may not exist at this moment, but that doesn't "prohibit" it (as a hypothetical law which forbids the creation of military commissions to be used on citizens might accomplish).

Also, let's be precise. Obama cannot make any law.

He can, however, as President in the role of Commander in Chief, direct the military to create military commissions over US citizen illegal combatants, like those crafted by President FDR and GWB.

It looks like the charges which could be brought against such citizens would have to be limited, too, to violations of the laws of war, not our civilian criminal law statutes. At least according to the article I posted earlier suggests: http://www.gwu.edu/~nsarchiv/torturingdemocracy/documents/20011106.pdf

(Note: I called it a "law review" article, but it appears to be a different kind of legal analysis. It was, instead, a legal opinion from the Office of Legal Counsel, offered by PATRICK F. PHILBIN, Deputy Assistant Attorney General. My mistake.)

 

[AmyNation]

You are right, it isnt "against the law" it simply doesn't exist.

 

[IlarMeilyr]

Also, I think any attempt by Obama to craft a MC for american citizens would not go over well, and would eventually go to the Supreme Court. As we saw with the CSRT and the 06' MCA, denying rights to individuals is not easy to get past the SC.

Obama would never do it. Sadly.

If he were to try it, it would proceed well enough.

There is very little evidence for the proposition that the SCOTUS would deny the Constitutionality of such a Commission, overruling precedent to come to such an opinion.

There would be, without doubt, some limitations on the authority of such commissions. I am quite certain the Court would emphatically state, yet again, that there HAS to be a mechanism for judicial review and a preservation of the right to habeas corpus. I would not argue against such limitations ,either. In fact, why wait for a Court to order it? If Obama were President enough to direct the creation of such MC's, it would be preferable for him to make such provisions a pre-condition of his directive.

 

[IlarMeilyr]

You are right, it isnt "against the law" it simply doesn't exist.

Right.

And under Obama, I am sure it won't, either.

Too bad.