In response to Steve's invitation for comment, I’d like to offer an observation on military commissions that is mostly consistent with, but comes from a slightly different perspective than, that provided by Steve in his magnum opus.
If military commissions are, indeed, our common law war courts “born of military necessity," then Madsen is on firmer ground than Quirin and today’s Guantanamo military commissions are more like Quirin than like Madsen.
First, some background. “Military necessity” is a law-of-war term-of-art. It refers to exceptional kinds of things that are prohibited in peacetime, where domestic and human rights law prevail, but permitted in war, where the law of armed conflict prevails and human rights norms often take a back seat. One manifestation of military necessity is the legality of lethal force against a person on account of his status (e.g., in war, you can "target" an “enemy combatant”) rather than on the basis of his conduct (e.g., in peacetime, you can use lethal force only in self-defense or in the face of an imminent threat to life that cannot be ameliorated through less drastic means, such as arrest).
The concept of military necessity has also been a keystone in the justification of military commissions. The best example of such necessity is in the event of military occupation. It is often the case that whatever judicial processes may have existed before occupation, they are no longer functioning. And yet, the occupying power is responsible, under the international law of armed conflict, as expressed in the 4th Geneva Convention, for maintaining public order. Still, the occupying power cannot spontaneously generate a legal system and should not transpose its own legal system and processes to the occupied territory. This is where military commissions come in, a reflection of the principle of military necessity. See, for example, Principle No. 5 of the U.N. Commission on Human Rights’ 2006 “Draft Principles Governing the Administration of Justice Through Military Tribunals,” which, as Steve notes, “discourages military jurisdiction over civilians, except in cases of occupation or martial law in which no other forum is available.” (Parenthetically, Principle No. 8, which Steve also notes and which provides that “The jurisdiction of military courts should be limited to offences of a strictly military nature committed by military personnel,” appears incompatible with Principle 5, which suggests the acceptability of military tribunals not only for military offenses, but when and wherever no other forum is available.)
Here’s what the Supreme Court had to say on the subject in Hamdan:
The military commission, a tribunal neither mentioned in the Constitution nor created by statute, was born of military necessity. See W. Winthrop, Military Law and Precedents 831 (rev. 2d ed. 1920) (hereinafter Winthrop). Though foreshadowed in some respects by earlier tribunals like the Board of General Officers that General Washington convened to try British Major John André for spying during the Revolutionary War, the commission “as such” was inaugurated in 1847. Id., at 832; G. Davis, A Treatise on the Military Law of the United States 308 (2d ed. 1909) (hereinafter Davis). As commander of occupied Mexican territory, and having available to him no other tribunal, General Winfield Scott that year ordered the establishment of both “‘military commissions’” to try ordinary crimes committed in the occupied territory and a “council of war” to try offenses against the law of war. Winthrop 832 (emphases in original).Understood the way military commissions were originally meant to be understood, it makes sense that they need not be limited to war crimes. Thus, Madsen, a case tried in a cobbled together tribunal in occupied German territory, is OK. But military commissions have no business being used, whether against combatants or civilians, where 'normal' courts are ‘open and operating.’ Thus, Quirin, which is about military commissions trying combatants, not civilians - albeit combatants committing perfidy - is not OK because courts were open and operating in the US when and where the German saboteurs were tried. Today, military commissions would also be improper for trial of privileged belligerents entitled to prisoner of war status because Article 102 of the 3d Geneva Convention requires PoWs to be sentenced by the same courts, using the same procedures, that the detaining authority uses for its own military personnel. That would be courts-martial, not military commissions.
The Guantanamo military commissions purport to try only war crimes, but Congress seems to have overstepped that boundary in the MCA – we’ll see once Bahlul is decided. What’s even more wrong with today’s military commissions is the same thing that was wrong with those used in Quirin. Quite apart from their manifest failure to deliver the minimum requisites of due process under either international or domestic law, today's military commissions are completely unnecessary, given how well oiled – perhaps too well oiled - the machinery of Article III courts has been for trials and convictions of suspected terrorists. And while it may be questionable that Article III courts could be convened in Guantanamo, there is no good reason (Congressional restrictions are not a good reason and neither is “they may be acquitted”) why Guantanamo detainees can’t be tried in federal court, if they are to be tried at all.
I've tried to distinguish between legitimacy and illegitimacy of military commissions through application of military necessity doctrine. By this, I do not mean to challenge what I understand to be Steve's thesis that one might reconcile disparate threads of military jurisdiction under the US Constitution through the application of international law. I do mean to suggest a principle from the international law of armed conflict that helps explain when military commissions are permissible, and when they are not.
International Legal Director
Human Rights First