A Brief History of Military Tribunals

Much attention has been given recently to the use of a military commission to bring terrorists to justice in the Guantánamo Bay detention center.  Amnesty International and Human Rights Watch, among others, are opposed to trying detainees in a military tribunal and in are in favor of trying them in civilian courts somewhere in the heartland of America.  Sides have indeed hardened with the change of administrations in Washington, and a series of Supreme Court cases have muddled the issue even further.  No one in Washington uses the term “Global War on Terror” very much anymore, yet our soldiers remain in the field, captured terrorists remain in Guantánamo, and Secretary of Defense Robert M. Gates has issued a new set of rules in the Manual for Military Commissions on April 27, 2010.  In the foreword, Gates notes that it is adapted from the American Manual for Courts Martial, although exceptions can be made for unusual circumstances relating to armies in the field, intelligence gathering operations, and other practical needs consistent with the United States Code.  Whether or not military trials will take place remains a mystery, but at least firm guidelines for handling detainees are now in place ten years after the 9/11 attacks.

The use of military commissions to try foreign nationals began in 1780 when General Benedict Arnold, the hero of Saratoga, turned his coat and joined the British after negotiations with the handsome and dashing Major John André.  Arnold summoned André to his command at West Point along the Hudson River.  The British dearly wanted to seize it, and Arnold gave André the plans, which he put into his boot for safe keeping on the ride back to New York.  Militiamen seized André on September 23, 1780, frisked him for valuables, and found the West Point maps hidden in his boot.  They also found his pass signed by Benedict Arnold.  André confessed his identity immediately.  The militiamen took André to Lieutenant Colonel Jameson at North Castle who sent a report to his commanding officer, Benedict Arnold, to see what was going on.  Meanwhile, George Washington arrived to inspect West Point, but Arnold slipped aboard the British warship Vulture making way down the Hudson River.  After a brief trial, the military tribunal ordered André hanged as a spy in 1780.  Although admired for his charm and honesty, and although he asked to be executed as a soldier by musketry, Major John André faced the gallows with dignity on October 2, 1780 in full dress uniform provided by Washington himself.

In America’s international wars, enemy soldiers taken prisoner were relatively well treated, or at least fairly treated, in accordance with the rules held among nations and the U.S. Army’s own internal rules.  There were exceptions, mostly taking place during hostilities against Native American tribes.  On 28 September 1862, a military commission was appointed to try those Santee Sioux warriors engaged in the hostilities against soldiers and settlers in Minnesota.  With so much war around them, the inhabitants’ hatred and calls for retribution ruled.  The trials were quick:  in just one day, the military commission tried forty Santees, with some trials lasting only five minutes.  When the proceedings concluded on December 5, 1862, the commission had sentenced 300 of the 392 men on trial to death by hanging.  The people of Minnesota may have felt vindicated, but President Lincoln believed the sentences were excessive.  On December 6, he insisted that only those convicted of rape and/or murder should be executed; the rest should receive jail sentences.  As a result, thirty-eight Santee warriors received the death sentence.

In December 1862, the largest mass execution in American history took place in Mankato, Minnesota when thirty-eight men on a gallows dropped to their death at once.  What was a just war for one side became a huge war crime for the other.  Approximately 500 settlers, traders, and soldiers died in the uprising, making it one of the bloodiest wars between Indians and whites in the nineteenth century.  Consequences were not only extreme for those Sioux directly involved, but the long range effects also set the tone for all future relationships between the United States government and America’s Indian peoples for the rest of the century.  The captivities of Kiowa and Comanches after military commissions under the direction of General Philip Sheridan in 1873 sent them to Fort Marion in St. Augustine, Florida.  As far as the Indians were concerned, this scheme constituted the separation of the leaders from their people, and at its worst, the new policy represented a form of ethnic cleansing. Army leadership agreed:  the Arapaho, Comanche, Kiowa, and Cheyenne tribes were about to change their lives completely as prisoners of the U.S. Army.

The Chiricahua Apaches, however, have a far more tragic history at the hands of military commissions.  General Philip Sheridan replaced General William T. Sherman as head of the army and ordered General Nelson A. Miles to bring in the infamous Geronimo while sending 502 Chiricahuas, the entire tribe, to Fort Marion. At least twenty-four died during thirteen months inside Fort Marion, after which time they continued their POW status in different detaining facilities.  Mount Vernon, a town about thirty miles north of Mobile, Alabama was opened for twenty women and eleven children on 27 April 1887.  They moved eventually to Fort Sill, Oklahoma, where they finally ended their long captivity in 1912.  Although theirs were not great numbers, the Plains tribes and the Chiricahua Apaches endured the longest captivities as enemy prisoners of war in American history.  Their endurance was remarkable.  That they have maintained their pride and culture despite the adversity remains nothing short of a miracle.  Then again, miracles do happen.

During the Philippine-American War, 1899-1902, military commissions were used extensively as necessary instruments in the suppression of crime at a time when crime was common.  They were also powerful adjuncts, especially the provost court, in putting an end to the insurrection, and making the establishment of civil government possible.  In the Philippine Islands these commissions tried many hundreds of cases and inflicted punishments varying from small fines or a few days’ imprisonment to forfeitures of many thousands of dollars and the infliction of the death penalty.  All this took place because Emilio Aquinaldo ordered his men to disperse into a guerrilla force.  The enemy wore no uniform, nor did he identify himself as a soldier.  To many American soldiers, fighting the Filipino guerrillas fell outside General Order 100, the U.S. Army’s rule book, and they resented being called to task for mistreatment of enemy prisoners and the enemy’s murder of civilians who helped them.  Fighting an unseen, non-uniformed enemy was, and remains, anathema to the American soldier in the field. 

In retrospect, military commissions and tribunals were brought to bear against the Santee Sioux in 1862, the Arapaho, Comanche, Kiowa, and Southern Cheyenne tribes in 1875, and again against the Chiricahua Apaches in 1886.  During the Philippine War, 1899-1905, military commissions enforced the laws of war and tried many hundreds of cases.  Rightly or wrongly, the commissions served as powerful tools that helped to end the fighting and establish civil government.  On the other hand, ambiguity arises when one examines the moral ground on which they were based.  Military commissions were called to serve against the 9/11 al-Qaeda conspirators in Guantánamo Bay, Cuba.  Although the Supreme Court halted their use in 2008, they were re-established in 2009, and their ultimate usefulness remains in question. Representing no nation-state, al-Qaeda’s agents of terror use assassination, bombing, hijacking, kidnapping, and suicide attacks against innocent civilians regularly and continue to perplex many countries over how to deal with men who fight to die in their cause to establish a pan-Islamic Caliphate throughout the world.

Nearly unknown to the Western world since the Thirty Years War ended in 1648, the United States and its allies face religious fanatics in 2010, intent on destroying the Enlightenment concept of democracy and replacing it with a medieval Islamist theocracy.  If we continue to abandon the hope for reciprocity, policies of generosity and humane treatment of enemy prisoners of war in favor of the rule of lex talionis, an eye for an eye and a tooth for a tooth, there is a good chance that in a heightened state of fear, we could all become blind and toothless.  If the Global War on Terror constitutes a new paradigm of warfare for the twenty-first century, perhaps we should think about creating a new international convention to replace Geneva.  In the meantime, if military commissions, as imperfect as they have been, help solve the seemingly endless conflict, let them proceed.