Legal Terms
Habeas Corpus
The literal meaning is "may you have the body". It is a request to a court to order the individual who holds a prisoner to release him so he may go to court and hear the charges that have been brought against him. This is a legal right that goes back to early English law. The United States Constitution says that in times of war or rebellion, the writ of habeas corpus may be suspended. Consequently, during times of martial law the writ has often been suspended. The suspension of habeas corpus is a common element of all three of the situations described here.
Nulla poena sine (praevia) lege
"There (is) no punishment without a (previous) law". This maxim comes from Roman law. It means that you can't be charged for doing something for which no law has been written. Also, an act that was legal at the time it was committed can not be made illegal on the basis of a more recently passed law. A statute that criminalizes a previously legal act is called an ex post facto law. The Constitution bans such laws (Art.1, Sect. 9). This is one of the factors in the Quirin case.
Inter Arma Leges Silent
"Between arms the laws are silent" is the literal translation, but the expanded meaning is that in wartime civil statues are not applicable. This is a quotation from Marcus Tullius Cicero (106-43 BCE) in his speech in behalf of Milo, Pro Milone (52 BCE). The situation at Rome when Cicero offered his defense has some similarities with the war situations described in this unit.
In 52 BCE, there were two major political factions in Rome, a senatorial faction associated with Pompey and Cicero and an opposing faction allied with Julius Caesar who, at the time of this trial, was in Gaul. Rome did not have a police force. Wealthy individuals had to maintain their own bodyguards for protection, both in the city and on the roads. Milo was on trial for the murder of Clodius. Milo and Clodius were heads of opposing forces or gangs that protected, respectively, members of the senatorial party and friends of Caesar. The crime occurred when entourages protected by Milo and Clodius, passed each other on the road. Something happened, a fight broke out and Clodius was killed. His body was taken back to Rome and displayed in the Forum so the crowd could see the wounds. As a result, violent riots broke out and arsonists burned the Senate building. The trial took place against this background of almost martial law. Soldiers were brought in to protect the court and various temples and buildings in the Forum. A special tribunal was set up to try Milo. Cicero used an argument of self-defense. He said that when a person is endangered by the weapons of highway robbers, every way of reaching safety is legitimate, the laws are silent and the laws don't require a person to suffer some sort of injustice before justice is served (Pro Mil. IV. 10-11). The second part of this statement is the justification for neglecting laws in wartime.
Attorney General Francis Biddle echoed similar sentiments regarding limitations on civil liberties imposed by a President during a war. In In Brief Authority, commenting on the internment of Americans of Japanese ancestry in World War II, he wrote that in war "What must be done to defend the country must be done…….the Constitution has never greatly bothered any wartime President" (Stone 2004 296).
Martial Law
Martial law or martial rule occurs when the civil government can not function and the military dispenses justice. This happens when an army invades and occupies a hostile territory. There are examples of martial law in non-hostile areas during wartime, as in Washington D.C. during the Civil War.
Prisoner of War
Prisoners of war are injured or uninjured enemy troops who are captured on or in the vicinity of the battlefield during wartime. People who support the army, such as cooks and journalists, when captured are also considered to be prisoners of war. Prisoners of war have rights to humane treatment. The geographical specificity is important to distinguish the soldier from a spy or saboteur who works behind enemy lines.
Military Tribunals
Modern thoughts about tribunals date to the American Civil War era when a code for warfare was developed by Francis Lieber and Henry Wager Halleck. Lieber, a Berlin-born political and legal philosopher who studied at the University of Jena, had fought with Prussian troops against Napoleon at Waterloo and later with the Greeks in their war for independence from the Ottoman Empire. He immigrated to the United States and taught at what are now the University of South Carolina and Columbia University. At South Carolina, he held the first chair in political philosophy, the forerunner of political science, established at a college in the United States. Lieber's military code combined ideas and values from ancient and medieval philosophers with his own military experience. It includes definitions of types of combatants and the types of law applicable to soldiers. Halleck, a General in the Union Army assigned to Missouri, had also written on the rules of war. Lieber's Code of Rules for War was released as General Orders 100 (1863) (Fisher 2005 71, 75). This release occurred after Taney's decision in Ex parte Merryman and before Ex parte Milligan. Lieber's Code had great influence on later United States military Codes and on the Hague Conventions (Fisher 2005 79).
One of the first problems to be decided is who can be tried by military courts during war time? Lieber (Article 3) stated that civilians should be tried in civil courts, if these courts were in operation, the view that is made explicit in Ex parte Milligan. (Fisher 2004 77). If civilian courts are not active, the military must administer the law.
Lieber (Article 13) refers to two types of military legal jurisdiction, one that deals with crimes committed against statutes enacted by Congress and a second that concerns violations of the codes of war. The first category is adjudicated by courts martial and has come to include violation of military regulations adopted under Congressional authority, but not passed by congress. Violations of the second category are tried by military tribunals. Enemy combatants also fall into two categories. Enemy soldiers who are captured on the battlefield and who are wearing some sort of uniform are entitled to prisoner of war status. These soldiers are eligible for courts martial. However, enemy combatants who are captured behind the battle line, whether or not they are wearing uniforms, can be tried by special military tribunals and, with fewer procedural protections than prisoners of war, are subject to the death penalty (Article 63, Fisher 2005 78).
Those tried by courts martial are entitled to legal counsel. A military judge presides. The members of the jury or court have a military rank equal or superior to the person on trial. The accused may confront his accusers and may see evidence introduced against him. He may call witnesses to testify on his behalf. People tried by a military tribunal or commission have many fewer rights and protections. Sometimes they might be denied the right to see the evidence used against them. Although the accused might have a lawyer, easy access to the attorney may be limited or monitored by the authorities. Holding the trial in secret eliminates the ability of observers to check on fairness and legality. In a capital offense case, the death penalty can be imposed with a majority vote.
Another difference between courts martial and tribunals lies in the review and appeal process. The judgment in a court martial has come out of the military justice system and may be appealed first to another military court, a service Court of Appeals; then to a special civil court, the U.S. Court of Appeals for the Armed Forces; and then they can be appealed to the U.S. Supreme Court. The order for military tribunals for terrorism suspects bans this appeal to the federal court system, although it is not clear that the federal courts will uphold that. Under the military tribunal system, there is a concentration of power in the executive branch of government (U.S. Military web site). The President may appoint the judge and the members of the court. The presiding judge can appoint the lawyers for the defense. The appeal is reviewed by the President (yes, that is what the executive branch has set up). As a result, the President controls the judge, jury, defense lawyers and hears the appeal. It is this type of trial that was used in the case of the German saboteurs in World War II.
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