Military Commissions and the Lieber Code: Toward a New Understanding of the Jurisdictional Foundations of Military Commissions

• Author: Gideon M. Hart
• Pages: 01

MILITARY LAW REVIEW

Volume 203 Spring 2010

MILITARY COMMISSIONS AND THE LIEBER CODE: TOWARD A NEW UNDERSTANDING OF THE JURISDICTIONAL FOUNDATIONS OF MILITARY

COMMISSIONS

GIDEON M. HART*

I. Introduction

Over the past eight years, the use of military commissions at Guantanamo Bay has thrust this rarely used military venue into the forefront of public attention.1 Legal scholars have increasingly looked to the history of the commissions when addressing the debates over the proper and appropriate manner for their use.2 Despite this heightened

interest in the history of these tribunals, scholars and commentators have assumed the underlying jurisdiction of commissions to try violations of the laws of war, devoting little attention to this topic.3 For example, in Hamdan v. Rumsfeld, the Supreme Court debated at length whether particular offenses fell within the laws of war, but did not ever question or seriously investigate the bases for this particular type of military commission jurisdiction.4 Contrary to various assumptions, military commissions have not always had jurisdiction over violations of the laws of war. Prior to the American Civil War, military commissions had been used only by General Winfield Scott to try a small number of American Soldiers during the Mexican-American War, primarily for common law crimes committed on foreign soil.5 Violations of the laws of war were tried previously only before Councils of War, a short-lived venue that was called only a handful of times in Mexico.6

In August 1861, Henry Halleck, a graduate of the U.S. Military Academy7 and veteran of the Mexican-American War,8 reentered the U.S. Army to fight in the Civil War.9 An author of a treatise on international law,10 Halleck had successfully practiced law in San

Francisco during the previous decade.11 By November, the newly commissioned Major General had been assigned to command the Department of Missouri.12 Upon arrival, General Halleck was faced with a dire situation: an increasingly violent guerrilla war threatened to spiral out of control as Union authorities attempted to maintain authority in this critical border state. A legal scholar, Halleck creatively combated guerillas with a legal solution, expanding the jurisdiction of military commissions to include all those offenses constituting violations of the laws of war, an innovation that allowed for the prosecution of those involved in the guerilla war before a military venue. Interestingly, Halleck's operations in Missouri are one of the earliest examples in American history of "lawfare" being used to combat insurgents.13 Before 1862 had come to a close, the Lincoln Administration realized the useful role that commissions could play nationwide and began encouraging their use outside of Missouri, based not on Scott's model from Mexico, but rather, on Halleck's more versatile Missouri model.

Most important to the expansion of the commissions throughout the entire country was the promulgation of the Lieber Code in late April, 1863, by the Department of War.14 The Lieber Code, building upon Halleck's innovation in Missouri, more fully delineated the laws of war15

and, for the first time, definitively granted military commissions subject matter and in personam jurisdiction to try violations of the laws of war.16

Soon after the promulgation of the Lieber Code, military commissions began appearing all over the United States.17 By the end of the Civil

War, over 3000 individuals were tried by commission for an enormous variety of different offenses under the jurisdictional authority of the Lieber Code.18

The Lieber Code has been enormously important in international law, serving as the foundation for similar law of war codifications in Prussia,19 the Netherlands,20 France,21 Russia,22 Spain,23 and Great Britain.24 It was also an important influence at the conferences of Brussels in 1874 and at The Hague in 1899 and 1907.25 But, despite this great influence abroad following Civil War, the Lieber Code has generally been viewed as having had almost no effect on the conduct of the combatants during the Civil War itself.26 While scholars recognized that the Code's flexible provisions on military necessity provided an ethical justification for a harder war, they generally agree that it failed to

limit Soldiers' conduct in the field.27 What has been neglected under this view is the Code's enormous impact on the use of military commissions in the same time period. Here, the Code provided the first nationwide authorization for the trial of violations of the laws of war before military commission. In context, the evolution of commissions arising from the Code provides a new and necessary view.

The value of the Lieber Code in shaping Civil War commissions also extends to the system of contemporary military commissions. The Lieber Code was the primary basis for expanding military commission jurisdiction over those individuals accused of violations of the laws of war.28 Modern day commissions, including those used during World War II and those currently in use at Guantanamo Bay, can directly trace their lineage to the Lieber Code.29 Although the merger of military commission jurisdiction-combining Winfield Scott's limited Mexican-American War military commissions (designed to try ordinary crimes committed on foreign soil) with his Councils of War (designed to try violations of the laws of war)-has been noted by legal historians30 and the U.S. Supreme Court,31 no serious explanation has been given for why or how this important transformation occurred.32 As this article explains, the two prongs of this jurisdiction were set forth together for the first time by Henry Halleck in Missouri, a development that was later repeated nationwide in the Lieber Code, fundamentally linking the Lieber Code to the modern system of military commissions.33

This article provides a historical context for the evolution of military commissions following the American Civil War. With knowledge gained from archival research, it offers the first comprehensive description of the role of the Lieber Code in expanding military commission jurisdiction over violations of the laws of war. Part II explores the early experiments with commissions during the first two years of the Civil War, primarily in Missouri, and also briefly discusses connections to lawfare and modern counterinsurgency efforts. Part III addresses the jurisdictional innovations of Henry Halleck and Francis Lieber, focusing particularly on the important role of the Lieber Code in expanding

military commission jurisdiction. Part IV considers the formation of a more centralized and modern military justice system, which allowed the Lieber Code to be quickly and consistently applied in the various military departments and the transition in 1865 to the Reconstruction. This entire article provides insight into the previously unexplored expansion of commission jurisdiction over law of war violations, which laid the foundation for almost all of the post-Civil War commissions.

II. Historical Foundations and Early Experiments

A. Military Commissions in the Mexican-American War

The use of military commissions in the United States can be traced back to the Revolutionary War, where they were mostly used to try spies.34 However, the generally accepted view is that the military commission did not assume a developed form until the Mexican-American War.35 On 19 February 1847, General Winfield Scott issued General Order No. 20, providing for martial law and the ability to try a number of offenses, including "murder, poisoning, rape . . . malicious

assault and battery . . . robbery, theft . . . whether committed by Mexicans or other civilians in Mexico . . . or against Mexicans or civilians" by military commission.36 Scott was faced with a problem; the legal rules governing military justice did not provide a venue for the "trial or punishment of murder, rape, [and] theft" while American forces were in Mexico.37

Scott, in creating the military commission, was responding to a unique problem. When American soldiers were no longer on American soil, a gap appeared in the military justice system, which would allow, most problematically, American Soldiers to commit crimes against Mexican civilians and go unpunished.38 Courts-martial are a statutorily created and defined military court.39 They were first constituted in the United States during the American Revolution by the Articles of War of 1775,40 and have existed since.41 Congress has, from time to time, issued articles of war and other regulations governing the jurisdiction, procedure, and other topics related to courts-martial.42 However, the Articles of War that were operative during the Mexican-American War did not include provisions for the trying of American Soldiers outside of U.S. soil before a court-martial, as, at that early date, Congress did not foresee the extensive campaigning of American armies on foreign soil.43

Under the new system of commissions, designed to fill this hole, over 400 individuals were tried in Mexico, with the majority being American Soldiers.44

In Mexico, the commissions were used almost exclusively to regulate the conduct of American Soldiers, committing mostly common law crimes in a situation where no existing court had jurisdiction to try them.45 Stephen Vincent Benet, in his 1862 treatise on military law, explained the role of commissions in the Mexican-American War, writing, "these courts [court-martial] have a very limited jurisdiction, both in regard to persons and offenses. Many classes of persons cannot be arraigned before such courts for any offence whatever, and many crimes committed, even by military officers, enlisted men or camp retainers, cannot be tried under the 'rules and articles of war.' Military commissions must be resorted to for such cases . . . ."46 The military commissions in the Mexican-American War were borne out of necessity, as a class of offenses that...