The Obama administration’s release of its plan to close the facility at Guantanamo Bay and bring the detainees to the United States has rekindled an intense political debate regarding the best way to deal with captured illegal combatants who lack allegiance to a nation-state. At stake is a fundamental legal issue: Should captured members of groups that have declared war on the United States be incarcerated in prisons in the U.S. homeland, where they would presumably be given the rights granted to American citizens and tried in U.S. civilian courts? Or are these combatants subject to military laws operative in time of war?
U.S. civilian and military leaders throughout the nation’s history have routinely used military commissions (courts staffed by military officers) to prosecute enemy combatants accused of violations of the laws of war. During the American Revolutionary War, General George Washington convened a military tribunal to try Major John André, a British messenger (who had just met with the turncoat Benedict Arnold) captured in civilian clothes and hung for spying. U.S. leaders similarly convened military tribunals during the Mexican-American War, the Civil War, the Indian Wars, the Spanish-American War, the Philippine Insurrection, and during and after World War II.
During the Civil War, the Lincoln administration used military tribunals to try civilian sympathizers to the rebel cause who committed acts of treason on Union territory. In 1866 the Supreme Court ruled that the use of military tribunals to try civilians in areas where civilian courts still functioned was unconstitutional. But the Court subsequently has given wide latitude to the use of military tribunals against enemy combatants accused of violation of the laws of war, such as a group of German saboteurs brought to the United States in 1942 by submarine and more than 2,500 German and Japanese soldiers and officials accused of war crimes and tried by military tribunals after the end of World War II.
These cases left open the question of how to treat illegal combatants (such as members of al-Qaeda) captured on foreign soil who are not U.S. citizens, but who are then brought onto American territory for detention. In 2006 the Supreme Court ruled (Hamdan v. Rumsfeld) that military tribunals not specifically sanctioned by Congressional legislation were unconstitutional. Congress quickly responded by passing the Military Commissions Act of 2006, formally authorizing the resolution of war crimes and terrorism charges by military commissions. Two years later the Supreme Court struck down a provision in the act that denied the writ of habeas corpus to detainees.
The Military Commissions Act of 2009, signed into law by President Barrack Obama and subsequently amended in 2011 and 2013, gave greater protections to defendants. Military commissions continue to operate in Guantanamo Bay today, albeit routinely under fire from human rights groups opposed to any system other than trying illegal combatants in civilian courts. Assertions that military commissions have a “tainted history” are at best a slanted reading of the historical record, as anyone with even a slight knowledge of the importance of the Nuremberg Trials in dispensing justice to war criminals between 1945 and 1949 could attest.
The disagreements today over how to handle illegal combatants have more to do with domestic politics than they do with the historical record of military commissions, which by any fair reading of the historical record have a time-honored place in the prosecution of war crimes in times of war.