Civilians Could Serve on Military Tribunals

Pentagon lawyers designing historic military tribunals to try terrorists are poring over history books and legal tomes for guidance.

While U.S. law permits the executive branch to design the commissions with few restrictions, even with little regard to precedent, officials drafting the rules are reportedly keeping history in mind.

America has a long tradition of using military tribunals to try foreign combatants and even terrorists, reaching as far back as the American Revolution. Most recently, military commissions were used extensively by the United States during and after World War II.

In 1942, President Franklin Roosevelt used tribunals to try eight Nazi saboteurs who landed on the East Coast apparently to harm wartime industrial production. Hundreds of German and Japanese prisoners were tried at military tribunals — including after the fall of Nazi Germany.

White House officials say the administration is carefully studying the rules and procedures used at the Nuremberg trials, which resulted in the indictment of scores of Nazi officials and organizations charged with abetting the Nazi effort. The Nuremberg trials were distinct from military tribunals established in the United States in that they used high-ranking civilians as judges.

But the Supreme Court, in the case Ex Parte Quirin, said despite these arguments, the men could be tried and sentenced to death by a military tribunal. "The Supreme Court is deferential to the executive branch in wartime," Belknap said. The Milligan case is one of several the court has handed down after a war is safely over in which they articulate libertarian principles, but rarely do that while a war is going on," he said.

https://abcnews.go.com/US/story?id=92098&page=1