The Supreme Court's Role in Defining the Jurisdiction of Military Tribunals: A Study, Critique, & Proposal for Hamdan v. Rumsfeld

• Author: Captain Brian C. Baldrate
• Pages: 04

MILITARY LAW REVIEW

Volume 186 Winter 2005

THE SUPREME COURT'S ROLE IN DEFINING THE JURISDICTION OF MILITARY TRIBUNALS: A STUDY, CRITIQUE, & PROPOSAL FOR HAMDAN V. RUMSFELD

CAPTAIN BRIAN C. BALDRATE*

Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.1

I. Introduction

Imagine the following scenarios.2 In the spring of 2006, the wife of an Air Force colonel stationed with her husband in England detonates a bomb in a military aircraft hanger destroying a B-52 bomber and killing dozens of Airmen. In Iraq, a civilian employee of the Marine Corps working as an interrogator tortures and kills an Iraqi prisoner. Back in North Carolina, two former Soldiers sneak onto Fort Bragg and steal machine guns, grenades, and claymore mines for use in their efforts to overthrow the federal government. Finally, in Omaha, Nebraska, a retired World War II Navy fighter pilot files a false tax return by failing

to declare his winnings from his weekly church bingo game. Surprisingly, under current law the only person subject to a military tribunal is the retired Navy pilot charged with tax evasion. Even more concerning is that according to the Supreme Court, the United States Constitution mandates this anomalous outcome. Given this inconsistency in the Supreme Court's current military jurisprudence, it is no wonder there is such confusion about the constitutionality of the military tribunals at Guantanamo Bay, Cuba.

Following the 11 September 2001 attacks, President George W. Bush published an Executive Order establishing military commissions.3

Pursuant to this order on 24 August 2004, the U.S. Defense Department convened the first U.S. military commission in more than fifty years, charging Salim Ahmed Hamdan with conspiracy to commit war crimes.4

Less than three months later a federal district court halted the proceedings, declaring that the military commission could not prosecute Hamdan.5 In July 2005, the Court of Appeals reversed the district court's decision allowing Hamdan's trial by military commission to proceed.6 Four months later the Supreme Court granted certiorari and agreed to determine the constitutionality of Hamdan's military trial.7 On

13 January 2006, after Congress passed the Detainee Treatment Act of 2005, the Bush Administration filed a motion to dismiss Hamdan's case arguing that Congress' recent legislation stripped the Supreme Court of jurisdiction over the case.8 While the Hamdan decision works its way through the appellate process military commissions remain in legal

limbo,9 and federal courts continue to struggle with the military's authority over detainees at Guantanamo Bay.10

Many prominent scholars wrote substantive articles about the constitutionality of military tribunals immediately following President Bush's creation of military commissions.11 However, most of the

constitutional dialogue focused on whether the procedures of military commissions comport with Due Process and other Fifth and Sixth Amendment protections contained in the Bill of Rights.12 Yet, the Supreme Court has never found any military tribunal procedure unconstitutional despite tremendous variations and irregularities with military tribunal procedures.13 While the Court has occasionally asserted that some Bill of Rights' protections apply to military tribunals,14 it has never explicitly held that the proceedings of any military tribunal violate Due Process or any other constitutional safeguard.15 Rather, the only

military tribunals that the Court has ever found unconstitutional were those tribunals in which the Court held the military lacked jurisdiction over either the person or the offense charged. Given that the Court's only constitutional restraints on military tribunals involve jurisdictional declarations, it is surprising that there is such scant research on the limits that the Constitution places on the jurisdiction of military courts.

This article analyzes the Supreme Court's judicial review over military courts in order to identify the constitutional limits on military tribunals. The central thesis is that the Supreme Court's review over military tribunals has failed to define a coherent boundary between federal courts and military tribunals. Rather than creating a consistent precedent, the Court's decisions have led to arbitrary results and increased uncertainty about the constitutionality of the military commissions at Guantanamo Bay, Cuba. This article seeks to remedy the problem by proposing a method of constitutional interpretation that will create a principled distinction between the cases belonging in federal court and those matters properly situated before military tribunals.

Part II of this article defines the different types of military tribunals, explains their bases under the Constitution, and illustrates how they relate to other federal courts. Part III examines the relationship between the Supreme Court and military tribunals, identifying the Supreme Court's use of collateral and direct review to define the jurisdiction of military tribunals. Part IV examines the historic use of military tribunals, reviewing their statutory support, their use by military commanders, and, most importantly, each instance of Supreme Court review over these military courts. After discussing these military jurisdiction cases, Part V critiques the Supreme Court's predominant methodology of originalism in limiting the jurisdiction of military courts. This part argues that the Court's reliance on originalism has led to a categorical rule-based approach to military jurisdiction. This bright-line approach creates arbitrary and illogical results that provide no guidance on whether current military commissions are constitutional.

Part VI advocates an alternative methodology known as translation theory-a more pragmatic, standards-based approach-which seeks to understand the Constitution's original meaning in a modern context. Part VI returns to the scenarios in this Introduction and demonstrates how

translation theory can reconcile previous Supreme Court precedent while providing a superior method of defining the constitutional boundaries of military courts. Part VII applies translation theory to Hamdan's military commission, demonstrating how the Court should analyze the current military commission cases. The article concludes by arguing that Hamdan's military commission is likely unconstitutional because Hamdan is not charged with any offense recognized under the law of war. However, it suggests that other military commissions at Guantanamo Bay may be constitutional if the members of al Qaeda are charged with actual war crimes.

II. Military Tribunals

A. The Relation Between Article III Courts & Military Tribunals

Article III of the United States Constitution establishes an independent and impartial judiciary to decide all cases and controversies of the United States. Article III, Section 1 proclaims:

The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in office.16

In drafting Article III, the Founding Fathers provided federal judges with lifetime tenure and fixed salaries in order to ensure an impartial judicial branch independent from Legislative and Executive control.17 The

Framers viewed an independent federal judiciary as essential to maintaining the separation of powers inherent in the Constitutional structure.18 Moreover, the Framers wanted to ensure that these independent courts (known as constitutional courts) were given the entire

judicial power of the United States government. As such, Article III, Section 2 directed that constitutional courts preside over "all cases . . . arising under this Constitution [and] laws of the United States."19

While the literal language of Article III mandates that constitutional courts hear all cases involving federal law, non-Article III courts have adjudicated certain federal issues throughout America's history.20 The Supreme Court has upheld the existence of non-Article III courts in some instances,21 while declaring their use impermissible and unconstitutional in other circumstances.22 While Article III certainly places some limitations on the use of non-Article III federal courts, there remains considerable controversy as to what those precise limitations are.23 It is generally agreed, however, that military tribunals are separate from Article III constitutional courts.24 Yet, if a military tribunal is not part of the federal judiciary, what exactly is it, what is its constitutional authority, and what are its constitutional limits?

B. What is a Military Tribunal?

Colonel William Winthrop-dubbed by the Supreme Court as the Blackstone of military law25-provided the classic definition of military law:

Military law in its ordinary and more restricted sense is the specific law governing the Army as a separate community. In a wider sense, it includes also that law, which, operative only in time of war or like emergency, regulates the relations of enemies and authorizes military government and martial law.26

Winthrop broadly defined a military tribunal as both a commander's tool for maintaining order and discipline27 and a wartime court used to punish war crimes and maintain order during armed conflict and military occupation.28 This definition posits four main types of military tribunals:

(1) Military Justice Court-A court established to punish members of the Armed forces for violations of a code that governs them;

(2) Law of War Court-A court established to prosecute individuals accused of violating the law of war...