Would JAGs deciding immigration cases amount to "military trials of civilians"?

The proposed use of JAGs to adjudicate immigration cases raises many questions, one of which is whether such proceedings would constitute “military trials of civilians.” If they are, they would fit in a category prohibited by both international human rights law and a long line of U.S. cases. (U.S. law permits a handful of exceptions for military trials of civilians, all of which involve a nexus to military activities). 

Nearly all persons who appear before immigration judges are civilians, so the remaining question is whether immigration proceedings before JAGs are “military trials.” That raises a challenge of definitions: is a “military trial” defined principally by the military status of the adjudicator or the military nature of the proceedings? 

The experience of the U.S. military’s three-year martial law rule over Hawaii after Pearl Harbor helps shed light on this inquiry. 

Within hours after the early morning attack on December 7, 1941, the territorial governor of Hawaii Joseph Poindexter issued a proclamation placing the entire territory under martial law and suspending habeas corpus. Lieutenant General Walter C. Short then declared himself the Military Governor of Hawaii. 

During martial law, military courts led by military officers oversaw and adjudicated criminal, civil, and administrative matters, including immigration enforcement. “[T]he Army and the FBI moved quickly to round up aliens and other individuals who previously had been investigated and were suspected of being disloyal or dangerous in a war situation.” Harry N. Scheiber & Jane L. Scheiber, Bayonets in Paradise: A Half-Century Retrospective on Martial Law in Hawai’i 1941-1946, 19 U. Haw. L. Rev. 477, 487 (1997). 

Military commissions oversaw compulsory registration, compliance with general orders, strict censorship of the press, regulation of gambling and use of alcoholic beverages, traffic and parking, curfew, and even dog leash requirements. “[M]artial law pervaded every aspect of civilian life.” Id.

Another flavor of military courts under martial law were Hawaii's provost courts. These enforced a wide range of regulations and conducted trials for felonies and misdemeanors under both territorial and federal law, which were continued in effect by military orders. The military officers adjudicating provost court cases were harsh enforcers of general orders, including military orders against civilian “chronic absenteeism” and job-switching. Id. Provost court proceedings were noted for their arbitrariness, and an average speed of five minutes for the 22,480 trials convened. 

The U.S. Supreme Court eventually struck down the expansive assertion of martial law in Hawaii. Duncan v. Kahanamoku, 322 U.S. 304 (1946). Justice Black’s majority opinion held that times of emergency might permit some resort to martial law, but that constitutional suspension could not last after civilian courts had reopened and were capable of resuming the normal adjudication of civil and criminal cases. In Hawaii, this occurred just months after the martial law declaration. 

Justice Black’s opinion reinforced the holding from Ex parte Milligan nearly a century earlier that “civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish.” Ex parte Milligan, 4 Wall, 2, 124, 125 (1866). 

Military commissions and provost courts in Hawaii adjudicated a wide range of civilian, military, and administrative matters affecting all aspects of life in Hawaii. The experience of Hawaii under martial law supports the idea that a “military trial” is primarily defined by the military status of the adjudicator, not the military subject matter of the proceedings.