Can an ex-president face a military tribunal for treason? 1/3
March 15, 2024 by Gary McCloud
The short answer is highly unlikely, but not definitively impossible. While the Constitution and federal law primarily envision civilian courts handling treason charges, the possibility of a military tribunal for a former presidentdepends on several complex and often conflicting legal principles, primarily centering around jurisdiction, status, and the specific nature of the alleged treasonous acts. The circumstances would need to be incredibly specific and unusual to overcome the strong presumption in favor of civilian justice, particularly given the constitutional safeguards afforded to all citizens, including former presidents.
The Constitutional Framework and Treason
Understanding whether a former president can face a military tribunal for treason requires dissecting the constitutional and legal framework surrounding both treason and military tribunals.
Defining Treason
The Constitution narrowly defines treason in Article III, Section 3: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” This definition is deliberately restrictive to prevent the government from using treason charges as a tool for political oppression. The government must prove two key elements: intent and an overt act. Mere expression of disloyal sentiments is not enough. There must be demonstrable action taken to aid an enemy or wage war against the U.S.
Military Tribunals: Jurisdiction and Scope
Military tribunals, also known asmilitary commissions, are courts established by the military to try individuals for offenses violating the law of war. Historically, they have been used to try enemy combatants during wartime. The authority to establish military commissions stems from both constitutional and statutory sources,primarily the War Powers granted to Congress and the President as Commander-in-Chief.
However, the jurisdiction of military tribunals is limited. Generally, they are intended for enemy combatants, unlawful belligerents, and those who violate the laws of war. Applying them to a U.S. citizen, especially a former president, raises serious constitutional concerns. The Fifth Amendment guarantees due process, and the Sixth Amendment guarantees the right to a jury trial.
Why It’s Unlikely, But Not Impossible
Several factors make it incredibly difficult for an ex-president to face a military tribunal for treason:
Citizen Status: As a former president, the individual remains a U.S. citizen and is entitled to the full protection of the Constitution. The Supreme Court has repeatedly emphasized the importance of civilian courts for trying civilians accused of crimes.
Lack of Enemy Combatant Status:Military tribunals are typically reserved for enemy combatants captured in armed conflict. A former president, even if accused of treason, is unlikely to fall under this definition unless directly engaged in active hostilities against the United States.
Treason is a Civilian Crime:Treason is codified in federal law (18 U.S. Code § 2381) and is typically prosecuted in civilian federal courts.
Potential for Political Motivation: The optics of a military tribunal trying a former president would be highly problematic, raising serious concerns about political motivation and the erosion of civilian control over the military.
Due Process Concerns:Military tribunals generally afford fewer procedural protections than civilian courts, raising concerns about due process rights guaranteed by the Fifth Amendment.
However, a hypothetical scenario could potentially justify a military tribunal, although it would face intense legal challenges:
Active Hostilities and Material Support: If a former president, after leaving office, actively engaged in levying war against the United States or provided direct and material support to a declared enemy of the U.S. during a time of declared war or congressionally authorized military action, and these actions occurred outside the United States where civilian courts lack practical jurisdiction, a military tribunal might be considered.
Loss of Citizenship:While highly unlikely, if the former president were to renounce their U.S. citizenship and then engage in acts of treason by actively supporting an enemy, their status as a U.S. citizen, and therefore their constitutional protections associated with that status, would be weakened.
Even in these extreme scenarios, the legal hurdles would be immense. The government would need to demonstrate a compelling need for a military tribunal and overcome numerous constitutional challenges.
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