Military Courts and Article III, Part III: Military Commissions and the U.S. Constitution

Prof. Stephen I. Vladeck
Washington College of Law

In Friday's second post in this five-part series on my new paper, "Military Courts and Article III," I examined the Supreme Court's jurisprudence concerning how a separate system of military courts-martial is consistent with the U.S. Constitution, especially Article III's requirement that all judges exercising the "judicial power of the United States" have salary and tenure protection. As that post explained, the Court's jurisprudence has inexplicably hinged on a sliver of constitutional text that cannot possibly bear the weight that's been placed upon it--all the more so in light of more recent expansions in the scope of U.S. court-martial jurisdiction.

In this post, I aim to ask the same question with regard to military commissions--the more irregular form of military jurisdiction that the Court has sanctioned under the Constitution. And, to make a long story short, the Court's jurisprudence respecting military commissions raises at least as many questions--if not more.

I.  Military Commissions and the Constitution

To be sure, there have been far fewer cases concerning the constitutional scope of military commission jurisdiction than has been true for courts-martial. Nevertheless, the Supreme Court has followed a superficially analogous methodological understanding of the permissible scope of non-Article III federal adjudication by such bodies. For example, whereas the rhetoric of the Court’s 1866 decision in Ex parte Milligan—which invalidated military tribunals unilaterally established by President Lincoln to try suspected Confederate sympathizers during the Civil War—focused on the relationship between civilian and military rule, the actual constitutional law focused on the right to jury trial guaranteed by Article III and the Fifth and Sixth Amendments. As Justice Davis explained, “if ideas can be expressed in words, and language has any meaning, this right—one of the most valuable in a free country—is preserved to every one accused of crime who is not attached to the army, or navy, or militia in actual service.”

Whether or not Congress could constitutionally authorize trial by military commissions when the civilian courts were open and functioning (a question on which the otherwise unanimous Milligan Court divided 5-4), the jury-trial provisions still militated against military jurisdiction absent congressional intervention. Perhaps because the jury-trial provisions formed the crux of the Milligan Court’s analysis, they were also one of the focal points when the Supreme Court in Ex parte Quirin controversially distinguished Milligan and upheld military tribunals established by President Roosevelt to try eight Nazi saboteurs during World War II. After finding that, unlike in Milligan, Congress had provided statutory authorization for the proceedings pursuant to its power to define and punish offenses against the law of nations, Chief Justice Stone proceeded to explain why the saboteurs’ commission did not raise the same jury-trial concerns that had barred military jurisdiction in Milligan:

We may assume, without deciding, that a trial prosecuted before a military commission created by military authority is not one “arising in the land . . . forces,” when the accused is not a member of or associated with those forces. But even so, the exception [in the Grand Jury Indictment Clause] cannot be taken to affect those trials before military commissions which are neither within the exception nor within the provisions of Article III, § 2, whose guaranty the Amendments did not enlarge. No exception is necessary to exclude from the operation of these provisions cases never deemed to be within their terms. An express exception from Article III, § 2, and from the Fifth and Sixth Amendments, of trials of petty offenses and of criminal contempts has not been found necessary in order to preserve the traditional practice of trying those offenses without a jury. It is no more so in order to continue the practice of trying, before military tribunals without a jury, offenses committed by enemy belligerents against the law of war. 

Quirin therefore held that the jury-trial provisions of Article III and the Fifth and Sixth Amendments “included a categorical exception for ‘offenses committed by enemy belligerents against the law of war,’ a carve-out the existence of which, however normatively persuasive, Stone traced to precisely one isolated statutory authority.” And yet, whether or not its reasoning on this point was persuasive, Quirin thereby embraced the same methodology that the Court had seized upon in the context of courts-martial: adjudication by non-Article III military courts is permitted when (1) the Constitution empowers Congress to define the particular offenses; and (2) the Constitution’s jury-trial provisions do not apply.

Although the Court decided a handful of additional military commission cases in the years after Quirin, none substantially revisited or otherwise revised this understanding of the relevant justifications for non-Article III military adjudication. In Madsen v. Kinsella, for example, the Court considered the constitutionality of a conviction of a U.S. citizen for the murder of her servicemember husband, obtained in a U.S. military court applying German law in occupied Germany. Although Madsen was not being tried for war crimes, the Court upheld the exercise of military jurisdiction based upon its conclusion that “[t]he ‘law of war’ in [Article 15] includes at least that part of the law of nations which defines the powers and duties of belligerent powers occupying enemy territory pending the establishment of civil government.” In other words, military commissions qua occupation courts could be shoehorned within the same analytical framework as the commission upheld in Quirin, at least according to Justice Burton's majority opinion.

And even after September 11, when the Court in Hamdan v. Rumsfeld (“Hamdan I”) invalidated military commissions established by President Bush to try non-citizen “enemy combatants” detained at Guantánamo Bay, the gravamen of Justice Stevens’s analysis was that the commissions were inconsistent with the constitutional structure envisaged by Quirin. Indeed, because the authority that Quirin read into Article 21 only encompassed offenders or offenses triable by military commissions under the laws of war, the question never arose whether the jury-trial exception identified in Quirin swept any broader; a commission consistent with Article 21 would necessarily be one trying “offenses committed by enemy belligerents against the law of war.”

After Hamdan I, however, that dynamic changed. In the 2006 MCA, Congress specifically authorized the trial by military commission of at least some substantive offenses arguably unrecognized under the international laws of war, including conspiracy and “providing material support to terrorism.” At first, the military commission trial courts and CMCR nevertheless concluded that such offenses were international war crimes, and so necessarily (if implicitly) satisfied the jury-trial exception recognized in Quirin. On appeal to the D.C. Circuit, however, the government fundamentally shifted the focus of its argument, contending instead that the commissions may constitutionally exercise jurisdiction because Congress has defined offenses against the “U.S. common law of war,” as distinct from the international laws of war. And unlike international law, the government argued, such “U.S. common law of war” recognizes conspiracy and material support as war crimes subject to trial by military commission. As a result, the question arises whether the jury-trial exception articulated in Quirin applies only to international war crimes. If so, the logic of both the courts-martial and military commission cases surveyed above suggests that the adjudication of such “U.S. common law of war” offenses by non-Article III military commissions (as opposed to by Article III civilian courts) would be unconstitutional—at least where the substantive offenses do not overlap with international law and the defendants are not U.S. servicemembers.

Thus far, at least, the D.C. Circuit has skirted this question, holding only that the MCA did not authorize retroactive application of its “new” offenses—and that the preexisting authority for commissions recognized in Quirin did not encompass offenses—such as material support—that are not clearly recognized as international war crimes. In other words, whether or not violations of the “U.S. common law of war” could be subject to trial by military commission prospectively, the court of appeals has concluded they were not so triable at the time of the defendants’ offenses. If the en banc D.C. Circuit affirms this conclusion in al Bahlul (which was argued on September 30, 2013, and is still pending), then the question could not arise until and unless a defendant is convicted of material support or conspiracy (or any other offense not recognized under international law) based upon post-MCA conduct. And although Judge Kavanaugh, writing only for himself in footnote 6 in Hamdan II, suggested that such an approach would raise no constitutional problem (more on that tomorrow), the government has only recently brought charges in the first case that properly raises the question of prospective application...

II.  The Puzzles Left by the Court's Jurisprudence

As with Friday's discussion of courts-martial, the Court's justification of military commissions leaves more than a little to be desired.

Again, the first of these puzzles is the paucity of the Constitution's text. At least in the context of courts-martial, the Court had some text upon which to seize. Here, in contrast, the textual justification is necessarily atextual--based entirely on a previously unnoticed exception to the jury-trial rights articulated by the Court in Quirin, coupled with a congressional power that is most often implemented through statutes enforced in civilian, rather than military, prosecutions. And even if one agrees with Chief Justice Stone that there should be an exception to jury-trial rights for enemy belligerents charged with violating the laws of war as a normative matter, as with courts-martial, there's no explanation for why an exception to a jury trial also categorically exempts the proceedings from the requirement of an Article III judge.

Second, even if Quirin is right, the exception to jury-trial rights that the Court there recognized doesn't explain why military commissions are also constitutionally permissible in valid cases of martial law and/or military occupation. Consider, again, the Madsen case, where the defendant was prosecuted for killing her American servicemember husband by a U.S. military court in U.S.-occupied Germany. No one argued that her offense was a war crime, so why wasn't she entitled to an Article III criminal trial? Ditto for valid situations of martial law, where the military courts also supplant (as opposed to supplement) civilian authority. If such military adjudication is permissible, the explanation cannot be traced to violations of the laws of war by enemy belligerents.

Third, for the existence of this newfound exception to the jury-trial rights, the Quirin Court relied upon the antiquated offenses of spying and aiding the enemy, which, Chief Justice Stone noted, had been subject to military prosecution since at least 1806 (and, arguably, since the Founding). But again, neither spying nor aiding the enemy satisfy the exception Quirin articulated, for neither are "offenses against the laws of war," even if all who commit them can properly be labeled "enemy belligerents."

Simply put, the Court's theory for the constitutional justification for military commissions (which is flawed in its own right) doesn't actually fit with its practice in when it has upheld such adjudication. And, as with courts-martial, these shortcomings have been latent for decades. And if that weren't enough, it bears emphasizing that the Court's justification for military commissions bears at best superficial resemblance to its justification for courts-martial. Thus, there really isn't a unitary military exception to Article III; there are at least two (three, if Madsen is rightly decided). As tomorrow's post will explain, recent developments have gone even further, suggesting that there may now be as many as five different threads to the military exception--distinct justifications that should leave us all, at bottom, with the conclusion that something is truly rotten in Denmark.