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Making a Burlesque of the Constitution: Military Trials of Civilians in the War Against Terrorism

Making a Burlesque of the Constitution: Military Trials of Civilians in the War Against Terrorism

Anthony F. Renzo* 

James Thompson was born in Denver, Colorado in 1966. At the age of five he moved with his family to Seattle, Washington. As a young adult, Thompson changed his name to Earnest James Ujaama and converted to Islam. He was recognized for his work with gangs and troubled youth by the City of Seattle, which awarded him the key to the City. Washington State lawmakers declared June 10, 1994 “James Ujaama Day.” In addition to his community service, Ujaama authored three books on youth entrepreneurship. On July 22, 2002, Ujaama was arrested by federal agents at his aunt’s house in Denver. He was imprisoned without judicial processfor several months in Virginia and was later charged with various offenses, including aiding terrorist organizations.

Like Ujaama, Ali al-Marri was arrested in the United States on December 12, 2001 as part of the investigation into the September 11 attacks. Al-Marri, a Qatari national lawfully residing in Peoria, Illinois, was indicted and charged as a civilian in the Federal District Court for the Southern District of New York with offenses related to aiding terrorist organizations. The case was transferred back to Peoria and scheduled for trial beginning on July 21, 2003. On June 18, al-Marri moved to suppress evidence allegedly obtained in violation of the Fourth Amendment, and an evidentiary hearing was set for July 2. On June 23, the government presented the court with an order signed by President Bush designating al-Marri as an enemy combatant and dismissing the indictment.10 Al-Marri was then transferred to military custody, where he has been detained for over three years awaiting trial by military commission.

The Bush Administration has claimed constitutional authority to subject persons detained in the United States, including U.S. citizens, such as Ujaama, and legal-alien residents of the United States, such as al-Marri, to trial by military commission if the executive branch decides that the detainee is an “unlawful enemy combatant” who has violated the law of war. On June 29, 2006, in Hamdan v. Rumsfeld, the Supreme Court held that the Authorization for Use of Military Force (AUMF), passed by Congress in the wake of the September 11 terrorist attacks, impliedly authorized the President to create military commissions for enemy combatants “in appropriate circumstances” and subject to the limitations of Articles 21 and 36 of the Uniform Code of Military Justice (UCMJ). Although the Court in Hamdan declined to make a specific ruling as to whether the President has the inherent Article II authority in the absence of action by Congress to convene law-of-war military commissions, the majority nonetheless stated that “authority [to establish military commissions,] if it exists, can derive only from the powers granted jointly to the President and Congress in time of war.” The Hamdan majority recognized that the issue of military-commission trials raises “important questions about the balance of powers in our constitutional structure,” and Justice Kennedy in his concurring opinion cited “the risk that offenses will be defined, prosecuted, and adjudicated by [the Executive] without independent review.”

In addition to addressing the balance of power between Congress and the President, the Court in Hamdan reaffirmed that Congress’s power to create military tribunals, including military commissions, is subject to constitutional limitations. The baseline constitutional limitation that governs this issue was drawn 140 years ago in the Supreme Court’s landmark decision Ex parte Milligan. Milligan and its progeny established that the Constitution’s jury-trial guarantees prohibit the military trial of a detainee apprehended within the jurisdictional reach of operational Article III civilian courts unless, during wartime or other national emergency, the government convinces those same civilian courts that the detainee is not a civilian but an enemy combatant. To show enemy-combatant status, the government must prove that the prisoner is a member of, or acting under the command of, the enemy’s armed forces. Hence, if the detainee is a civilian, that detainee-civilian is entitled to a trial by jury in a civilian court
in the absence of a complete breakdown of the institutions of civil government rendering the civilian courts unable to function. On the other hand, a detainee found to be an enemy combatant is subject to military jurisdiction, including the trial of any alleged criminal offense by military tribunal. This Article will demonstrate that a military commission convened in areas where Article III courts are open and functioning has no jurisdiction to try a detainee unless the civilian courts have determined that the detainee is properly classified as an enemy combatant and not as a civilian.

Part I of this Article provides a short overview of the well-settled constitutional principles that govern military trials of civilians. Part II traces the origins of the Constitution’s jury-trial guarantees. Part III provides a brief history of the use of military tribunals in America since its founding. Part IV explains why Congress does not have the power under the Constitution to authorize military tribunals to try civilians during war or other national emergency. Part V explores the law-of-war distinction between the legal categories of “enemy combatant” and “civilian.” Finally, Part VI demonstrates that the government’s use of military commissions in the war against terrorism is subject to judicial review to ensure that Article III and Sixth-Amendment rights of trial by jury have not been infringed.

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*This article was originally published in Vol. 31 of the Vermont Law Review and can be found at 31 VT. L. REV. 447 (2006). The citations have been slightly edited to bring them in line with current citation standards and to update URLs that have been taken offline in the intervening years. The sources used were those available to the author at the time of publication.


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