Military Tribunals Have a Controversial History

Keith Suter, in the Daily Telegraph (Sydney, Australia) (April 12, 2004):

One of US President George W. Bush's most controversial decisions in the war on terrorism is the creation of military tribunals to try suspects, including two Australians. Part of the President's problem is that American military tribunals have a long and controversial history.

Military tribunals use military officers as the prosecution, defence, judge and jury, and there is no role for civilians. They are used to deal with military crimes that do not arise in most civilian legal systems, such as spying and sabotage.

Tribunals are answerable only to the President -- they have no oversight from Congress, civilian appeal courts or the public. The media are often excluded from trials and the defence team is appointed by the military.

During the War of Independence from 1776 to 1783, General George Washington used military tribunals to try people accused of spying for Britain. The US constitution gives the president broad powers in wartime as the nation's commander-in-chief.

During the American Civil War (1861-1865), Abraham Lincoln's government set up military tribunals and denied people their right to trial by jury. The accused were unable to challenge the legality of their arrest and conviction.

Confederate agents and sympathisers were accused of conspiring to seize Union weapons, liberate prisoners of war and persuade allies in the north to join the South in destroying the Union. About 4000 people were tried by tribunals.

One famous tribunal immediately after the Civil War was to try those accused of participating in the conspiracy to kill Lincoln in April 1865. The killer, John Wilkes Booth, had been tracked down and killed on the spot but eight others were rounded up as part of the plot.

All eight were found guilty; four were executed and four were sentenced to long prison terms. Historians and legal scholars continue to debate these penalties, with some claiming that they were undeserved.

America's use of military tribunals during World War II also remains controversial.

After the US entered the war in December 1941, Hitler instructed German naval intelligence to infiltrate the US with sabotage teams and bomb railway stations, water-supply facilities, factories and Jewish-owned stores. The agents were living in Germany but often had American backgrounds and good local knowledge. But they were not highly trained Nazi killers and had only a few weeks' training in military operations....

A secret military tribunal was hastily established in Washington DC in July 1942. Seven generals acted as judges and jurors. Military lawyers were appointed to defend the Germans. Colonel Kenneth Royall took his defence duties seriously and midway through the trial he petitioned the Supreme Court on the tribunal's legality. The Court quickly ruled that the tribunal was legal and could proceed.

The trial continued. All eight Germans were sentenced to death. The verdicts went to the president, who decided that six should die but [George Dasch, the German leader] should get 30 years and [his partner Ernest Peter] Burger (who had also helped the investigations) should be sentenced to life in jail.

A few hours later the six Germans were executed in the electric chair. They were secretly buried in Washington.

The memory of the case hangs heavily over scholars and historians and some argue the punishments did not fit the crime.

Dasch was sent back to Germany after the war. He was hated as a traitor and he tried to get back to the US, but Hoover kept him out on the grounds that he was a communist. Dasch died in Germany in 1991.

Captain Henry Wirz, commandant of Confederate Andersonville Prison during the American Civil War, was hanged in 1885. He was convicted by a military commission for war crimes against Union prisoners and is the only person ever executed in the US for war crimes. Historians believe that he was a scapegoat.