"Enemy Combatants" and Military Tribunals
July 01, 2002

by Staff, History Collection, Mid-Manhattan Library

A brief introduction to the background of military tribunals and the source of their authority in trying "enemy combatants." Some of the sources below will provide varying perspectives on the issue.

All of the paper documents cited are available in the Mid-Manhattan Library. See a librarian in the History and Social Sciences Department for assistance.

Relevant Documents

The Constitution of the United States (Ref. 342.7302-U)

Several sections relate to this matter. Especially relevant are the following:

  • Article I, Section 8, Paragraph 14: The so-called "war powers" of Congress
  • Article II: The powers of the President
  • Article III: Section 3, Paragraph 1: Defines treason
  • Amendment 5: Rights of Persons in Criminal and Civil Matters
  • Amendment 6: Rights of Accused in Federal Criminal Proceedings

Geneva Conventions of 1949: Protect the rights of prisoners of war (Ref. 341.3-D Draper, G. I. A. D. The Red Cross Conventions. New York: Praeger, 1958)

United States Code of Military Justice: Title 10 of the United States Code (Special Collections, 5th Floor)

  • Section 821, Article 21: Provides for the use of military tribunals
  • Section 836, Article 36: Gives President authority to create rules for tribunals
  • Authorization for Use of Military Force (PL 107-40, 115 Stat. 224) (Special Collections, 5th floor)
  • President George W. Bush's Executive Order on Nov. 13, 2001 authorized the creation of military tribunals (Published at 66 Federal Register 57831-57835, Nov. 16, 2001) (Periodicals' Desk, 4th floor)

The Supreme Court of the United States

Several decisions have been cited concerning the authority of the United States government to have civilians tried in military courts. Among the most significant are the following:

  • Ex parte Milligan, 71 U. S. 2 (1866): Grew out of military restrictions on civil liberties in the North during the Civil War. (Periodicals' Desk, 4th floor)
  • Ex parte Quirin, 317 U. S. 1 (1942): President Franklin D. Roosevelt established a military commission to try German saboteurs during World War II. (Periodicals' Desk, 4th floor)
  • Cramer v. United States, 325 U. S. 1 (1945): A naturalized citizen was charged with treason for giving aid and comfort to the enemy during World War II. (Periodicals' Desk, 4th floor)
  • In re Yamashita, 327 U. S. 1 (1946): A World War II era case involving the command responsibility doctrine in review of the conviction of a Japanese commander in the Philippines by an American military tribunal. (Periodicals' Desk, 4th floor)
  • Duncan v. Kahanamoku, 327 U. S. 304 (1946): Concerned with Japanese exclusion, the case considered wartime curtailment of fundamental civil liberties by military authority. (Periodicals' Desk, 4th floor)
  • Johnson v. Eisentrager, 339 U. S. 763 (1950): German nationals were confined in the custody of the United States Army following their conviction by a military commission for engaging in military activity against the United States. (Special Collections, 5th floor)
  • Madsen v. Kinsella, 343 U. S. 341 (1952): The Court ruled that a civilian committing a crime could be prosecuted by a military tribunal. (Special Collections, 5th floor)

Sources for Further Information

  • http://www.citizensoldier.org/militarytribunal.html
    Questions and answers about military tribunals. Prepared by Citizen Soldier, an organization of individuals concerned with military-civilian relationships within American society.
  • http://www.au.af.mil/au/awc/awcgate/awc-law.htm
    Extensive and comprehensive links that cover all aspects of military law. Prepared by the Air War College whose "mission is to educate senior officers to lead at the strategic level in the employment of air and space forces, including joint, combined, and coalition operations, in support of national security."
  • http://www.llrx.com/features/military.htm
    "United States Military Commissions: A Quick Guide to Available Resources," by Stephen Young, includes both primary and secondary sources. Llrx.com is a web journal concerned with internet legal research.
  • http://usinfo.state.gov/topical/pol/terror/02032603.htm
    "Military Commissions: Fair Trials and Justice," by William H. Taft IV. The author is the Legal Adviser of the United States Department of State.
  • http://www.hrw.org/press/2001/12/military-comm-ltr.htm
    "Letter to Secretary Rumsfield on Military Commissions: Human Rights Watch Urges Due Process Protections," by Kenneth Roth, Executive Director of Human Rights Watch.