Caution advised when seeking to draw lessons from history

Prof. Martin S. Lederman

Prof. Martin S. Lederman of Georgetown University Law Center has written a remarkable, rigorous article titled Of Spies, Saboteurs, and Enemy Accomplices: History’s Lessons for the Constitutionality of Wartime Military Tribunals, 105 Geo. L. J. 1529 (2017), the first of two in a series. His conclusion gives a sense of his project, which is, among other things, to caution against uncritical acceptance of claims of past practice with respect to the trial of offenses by military tribunals (p. 1680 (footnotes omitted)):

[D]uring the Civil War the military (and, to a certain extent, President Lincoln himself) did act on the presumption that the political branches have extensive, albeit not unlimited, authority to subject domestic-law offenders to military justice in a wide range of circumstances—culminating in “the highest-profile and most important U.S. military commission precedent in American history,” the 1865 trial of the Lincoln assassination conspirators. Not surprisingly, the government cites that dramatic example, together with a handful of less well-known trials in the Civil War and World War II, as having established a “longstanding practice of the government,” long after the Founding, that ought to “inform our determination of what the law is.” Likewise, the judges who have voted with the government in the al Bahlul case cited the Lincoln assassination proceeding—along with the Nazi saboteurs’ trial in 1942—as canonical authority that might liquidate a constitutional settlement. Accordingly, in a forthcoming article I examine whether such a fleeting but high-profile historical practice in two of the nation’s most important wars, and arguably endorsed by two of the nation’s greatest wartime presidents, offers persuasive justification for a broader military-tribunal exception to Article III. As this Article has demonstrated, however, whether or not those later landmark cases are to be afforded precedential respect, that question should be considered without any illusion that those adjudications were faithful adaptations of a well-entrenched practice derived from the Founding. To the contrary, they were, if anything, a sharp break from the original foundations—including the experience of the Revolutionary War—and a deviation from the guarantees enshrined in Article III.