Military commission trials do not meet the justice standards of the Geneva Conventions and should be replaced by regular court-martial proceedings, according to David Glazier, a fellow with the Center for National Security Law. Glazier outlined the history of military commissions in a talk Oct. 21 titled “Common Law War Court: The True History of the Military Commission,” sponsored by the J. B. Moore Society for International law, the Center for National Security Law and the Human Rights Study Project.
Court-martials are defined by statute, most recently in 1951 by the Uniform Code of Military Justice, and their procedures are largely codified too, Glazier said. “Military commissions have served as a common law gap-filler,” he said. Their original purpose was for trying U.S. personnel who were outside the physical jurisdiction of the United States, for trying crimes not defined by the articles of war and for trying foreign nationals in territories occupied by U.S. forces abroad. “For most of history, the laws of war have existed only as customary international practice. So a common law approach was the only way that an individual could be tried for a war crime.” It’s this function that the commissions are now performing with captured terrorists, he said.
Much of the common understanding about commissions amounts to no more than “tribal lore or urban mythology,” Glazier said. He called for a comparative law approach; namely, to follow the procedures of court-martials, including judicial review of cases.
He charged proponents of commissions with “taking historic snapshots of commissions and saying we can use them the same way today.”
Glazier debunked the assertion that military commissions trace back to the Revolutionary War and the cases of Nathan Hale and John Andre, the British officer who arranged the defection of Benedict Arnold. Both were promptly hung without trials, Glazier noted.
Rather, commissions came into existence in the Mexican War in 1846. Before then, Congress conceived of the Army as acting only defensively, within American borders, in which case soldiers guilty of regular crimes (as opposed to military ones such as desertion or refusing an order) would simply be turned over to local civilian authorities for trial. Gen. Winfield Scott, discovering that no authority existed for trying a soldier who had murdered a Mexican civilian, declared martial law in the areas where the American army was operating and used common law to conduct trials in what he termed military commissions. Commissions were also used to try Mexicans for crimes against U.S. soldiers. Scott, who had studied law at the College of William & Mary, defined how the trials would proceed, generally following court-martial forms, and what the responsibilities of the presiding officers would be. Scott saw his authority as derived from Congress, Glazier pointed out, not through the president. By 1848, 117 military commissions were convened, 19 with Mexican defendants. Americans were convicted 68 percent of the time, and Mexicans 57 percent of the time, Glazier said.
“I think that the fact these military commissions were invented to try Americans is significant. It’s only logical that they were intended to have the same standards of due process as a court-martial. The sense of justice of the individuals involved would have demanded no less,” Glazier asserted.
The Civil War was the “heyday” of military commissions, he said, with 4,271 trials held during the war and another 1,435 conducted during Reconstruction when military authorities administered the former Confederate states. Commissions were used to try similar crimes and followed court-martial procedures, especially judicial review. Because the North saw the war as a rebellion, he said, they preserved the rights of Southerners as Americans when dealing with them judicially. All death sentences had to be personally approved by President Lincoln. Convictions were overturned “on a fairly regular basis” if they did not meet the standards of a court-martial, Glazier said. Military commissions were explicitly recognized by Congress in 1862 when it created the duties of the Judge Advocate General.
Military commissions were used in the Indian wars and the Philippine war, he noted, and because they recognize combatant immunity, they saved warriors from being executed for murder. “The evidence is that the procedures, and especially the review processes, conformed exactly to that of the court-martial,” he said. Similar proceedings occurred in World War I and were codified by Congress, which used language drafted by the JAG officer who had presided over commission trials in the Philippines.
When eight German saboteurs were captured in the United States in 1942—four on Long Island and four in Jacksonville—there was public outrage similar to 9/11, Glazier said, and there were demands that they be summarily put to death. “Most people didn’t care if there was any form of trial or not.” The problem was that no laws existed to deal with their intended crime. “To accomplish national security objectives, a common law of war trial really did make perfect sense at the time and I would argue that it really was consistent with the gap-filler approach that the military commissions had been used for in the past,” Glazier said. President Roosevelt preferred to court-martial them as a prelude to execution, but then Attorney General Francis Biddle argued instead for a military commission “because then we can take short cuts,” such as dispensing with rules of evidence and judicial review, Glazier said.
The Supreme Court’s ruling in the case, Quirin, ex parte, written after most of the saboteurs had been executed, found that they did have a right to judicial review. Glazier compared the ruling to Marbury v. Madison in that the court crafted a ruling establishing judicial review with wording that didn’t oblige the administration to do anything differently so that the ruling would be politically acceptable and not disobeyed. “What Quirin does absolutely stand for is the fact that the president cannot foreclose by executive fiat the courts to individuals who are subject to military trials. So it’s absolutely remarkable that 60 years later, President Bush would issue an order trying to say that the courts are closed to these guys when the Supreme Court had said, read my lips, you cannot do this.”
FDR changed his approach in the next instance, Glazier said. In 1944 two more German spies were caught in New York and tried by military commission but according to court-martial procedures. They were convicted and their death sentences commuted after FDR died.
Glazier distinguished the trials in Nuremburg and the Far East after the war as evolved forms of European courts, rather than typical military commissions, even thought they are commonly referred to that way. When the Korean War broke out, Gen. Douglas MacArthur, who had previously used military commissions rather loosely, became stricter and specifically required that they conform to court-martial standards. “I don’t think that history really supports the idea that the military can use a lesser standard of justice than the court-martial,” Glazier said. Military commissions are “just gap-filler for jurisdiction, not a facilitator of convictions.” Commissions, which he dubbed “court-martial lite,” are also open to challenge on separation of powers and common law grounds, he said.
Congress needs to go further in defining war crimes, an authority it has under the Constitution, Glazier added.
Going solely to court-martial approach would fully comply with the direction of congressional acts. “There’s no possible issues with law of war violations,” Glazier said. “And since the third Geneva Convention specifically says that you must try prisoners of war via court-martial, there’s international legal legitimation of the court-martial process as meeting international due process. So it gets you top cover on that ground as well.”
Glazier spent 21 years as a U.S. Navy officer and commanded a guided-missile frigate before retiring. A 2004 graduate of the Law School, he is the founder of two student organizations, Virginia Law Families and Virginia Law Veterans.