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Of Spies, Saboteurs, and Enemy Accomplices: History’S Lessons for the Constitutionality of Wartime Military Tribunals

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Of Spies, Saboteurs, and Enemy Accomplices: History’S Lessons for the Constitutionality of Wartime Military Tribunals Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2017 Of Spies, Saboteurs, and Enemy Accomplices: History’s Lessons for the Constitutionality of Wartime Military Tribunals Martin S. Lederman Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/1800 http://ssrn.com/abstract=2840948 105 Geo. L.J. 1529 (2017) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Constitutional Law Commons, Criminal Law Commons, Legal History Commons, Military, War, and Peace Commons, and the National Security Law Commons Of Spies, Saboteurs, and Enemy Accomplices: History’s Lessons for the Constitutionality of Wartime Military Tribunals MARTIN S. LEDERMAN* Congress has recently authorized military commissions to try enemies not only for violations of the international law of war, but also for domestic-law offenses, such as providing material support to terrorism and conspiring to commit law-of-war offenses. Moreover, President Trump has indicated support for further military trials, including trials against U.S. citizens. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution prescribes. The constitutionality of such an abrogation of Article III’s criminal trial guarantees has been debated during many of the nation’s wars without clear resolution, and the constitutional question is now at the heart of a potentially landmark case, al Bahlul v. United States, currently before the Supreme Court. In the rare cases where the Supreme Court has recognized exceptions to Article III’s criminal trial protections, it has typically invoked functional and normative justifications. When it comes to adjudication of war-related domestic- law offenses, however, neither the government nor the appellate judges who have defended commission trials have offered any such functional or normative considerations sufficient to justify denial of the independent judge and jury that Article III guarantees. Defenders of the military tribunals have instead relied almost exclusively upon historical claims of two kinds to defend the constitution- ality of using military commissions in this context. This Article addresses one of those historical claims—namely, that the Constitution should be understood to have preserved, rather than to have modified, the federal government’s power to prosecute a war as it did during the Revolutionary War. According to this argument, the Constitution was ratified against, and should be presumed not to have called into question, a practice of military adjudication of offenses that were not violations of the international law of war: court-martial proceedings, authorized by the Second Continental Congress and approved by General George Washington, against certain spies and against disloyal civilians who aided the British. The earliest Congresses purportedly confirmed this constitu- * Visiting Professor of Law, Georgetown University Law Center. © 2017, Martin S. Lederman. Thanks to Jennifer Daskal, Dan Ernst, Richard Fallon, Eugene Fidell, Jack Goldsmith, David Golove, Daniel Hulsebosch, Vicki Jackson, Dawn Johnsen, Joshua Kastenberg, Andrew Kent, John Mikhail, Ellen Noble, Michael Seidman, Brad Snyder, Steve Vladeck, and participants in the Georgetown University Law Center Faculty Workshop, the New York University Law School Colloquium on Law and History, and the Potomac Foreign Relations Law Roundtable, for very helpful reactions and suggestions. I am also greatly indebted to Raffaela Wakeman, and to Thanh Nguyen and the remarkable team of research librarians at the Georgetown University Law Center Library, for their assistance in tracking down many obscure sources. 1529 1530THE GEORGETOWN LAW JOURNAL [Vol. 105:1529 tional understanding by enacting statutes permitting military trials for spying and for aiding the enemy—statutes that have remained in the federal code ever since. This Article offers the first comprehensive account of the Revolutionary War precedents. It discusses how they were understood in the ensuing decades and the ways in which they, and the post-1789 statutes, have been invoked and mischaracterized as authority in later wars. This history demonstrates that the received wisdom about these precedents is almost entirely mistaken, and that they provide little, if any, support for a new Article III exception for military adjudication of war-related domestic-law offenses. The Article thus offers an object lesson in how a complex history can be misunderstood and distorted in the course of constitutional interpretation, particularly on questions of war powers. The pre-constitutional history does, however, include one conspicuous aberra- tion: a 1778 congressional resolution authorizing trial by court-martial of civilians who provided a particular kind of aid to the British army. General Washington relied upon this resolution in 1780 as authority to convene a court-martial to try Joshua Hett Smith for assisting Benedict Arnold in the plot to surrender West Point to the British. This Article shows why it would be a mistake to accord much interpretive weight to the Smith case—a striking deviation from Washington’s otherwise consistent conduct—in crafting excep- tions to Article III’s criminal trial guarantees. TABLE OF CONTENTS INTRODUCTION .......................................... 1532 I. ARTICLE III, CRIMINAL TRIALS, AND MILITARY TRIBUNALS ....... 1545 A. A CIVILIAN JURY .................................. 1545 B. AN INDEPENDENT PRESIDING JUDGE ..................... 1546 C. THE SPECIAL CONCERNS ASSOCIATED WITH MILITARY TRIALS, ESPECIALLY IN WARTIME ............................ 1549 II. THE CRIMINAL TRIAL EXCEPTIONS TO ARTICLE III AND THEIR JUSTIFICATIONS ...................................... 1553 A. THE FUNCTIONAL AND PRAGMATIC JUSTIFICATIONS FOR ALL BUT ONE OF THE RECOGNIZED ARTICLE III CRIMINAL EXCEPTIONS .... 1554 1. The Partial Exceptions ......................... 1554 a. Petty Offenses ............................ 1554 b. Territorial Courts, and Courts of the District of Columbia ............................... 1557 2017]OF SPIES,SABOTEURS, AND ENEMY ACCOMPLICES 1531 2. The Full Exceptions for Military Trials ............. 1561 a. Courts-martial of Service Members ............ 1561 b. Occupation Courts and Martial-Law Courts ...... 1565 B. THE SURPRISING DEARTH OF FUNCTIONAL AND OTHER NON-HISTORICAL JUSTIFICATIONS FOR THE MILITARY TRIAL OF WAR-RELATED OFFENSES ............................ 1567 1. The Absence of Compelling Functional Justifications . 1567 2. Two Fairness Arguments ....................... 1572 a. Fairness to Defendants ..................... 1572 b. Fairness to Service Members ................. 1574 3. Arguments that the Constitution Does Not Apply ...... 1574 a. Extraterritorial Limitations .................. 1575 b. The “Protection/Allegiance” Argument ......... 1576 c. The Distinction Between Belligerent and Municipal Authorities .............................. 1579 III. THE ANOMALOUS QUIRIN EXCEPTION FOR TRIAL OF OFFENSES AGAINST THE INTERNATIONAL LAW OF WAR, AND THE “PRESERVATIONIST”ACCOUNT OF ARTICLE III ................ 1582 A. QUIRIN’S HOLDING AND CHIEF JUSTICE STONE’S ERRORS ON INTERNATIONAL LAW ............................... 1583 B. QUESTIONING QUIRIN’S PREMISE THAT ARTICLE III WAS DESIGNED TO PRESERVE THE PRE-CONSTITUTIONAL STATUS QUO ......... 1589 IV. UNDERSTANDING THE SPYING AND AIDING-THE-ENEMY RESOLUTIONS AND TRIALS DURING THE REVOLUTIONARY WAR ............... 1592 A. HISTORICAL CONTEXT CONCERNING THE AUTHORITY OF THE PRE-1781 CONTINENTAL CONGRESS ..................... 1592 B. THE IDIOSYNCRATIC “OFFENSE” OF SPYING WITHIN ARMY ENCAMPMENTS ................................... 1595 C. AIDING THE ENEMY—THE “QUASI-TREASON” RESOLVES ....... 1604 1. The June 1776 Loyalty Resolve and Recommendation .... 1606 2. The September 1776 Articles of War ............... 1607 3. The October and December 1777 Resolutions for the Vicinity of Philadelphia ........................ 1610 1532THE GEORGETOWN LAW JOURNAL [Vol. 105:1529 4. The February 1778 Kidnapping Resolve ............ 1615 5. The Court-Martial of Joshua Hett Smith ............ 1618 V. THE EARLY CONGRESSES,THE 1806 ARTICLES OF WAR, AND THE WAR OF 1812 ....................................... 1627 VI. SPYING,TREASONOUS CONDUCT, AND MILITARY TRIALS IN LATER AMERICAN WARS .................................... 1633 A. THE CIVIL WAR ................................... 1634 1. Joseph Holt’s Reading of the Quasi-Treason Articles in the Smithson Court-Martial ..................... 1635 2. The “Necessity” Argument for Military Commissions .... 1643 3. Resurrecting the 1778 Resolve, and the Joshua Hett Smith Trial, in the Lincoln Assassination Trial and the Milligan Case ............................... 1645 4. Congress’s Amendments to the Spying Statute ....... 1650 B. THE EARLY TWENTIETH CENTURY ...................... 1652 1. Brigadier General Crowder and the 1916 Revision of the Articles of War .............................. 1654 2. Assistant Attorney General Charles Warren’s Remarkable, Unauthorized Campaign for Expansion of Military Jurisdiction Over Domestic-Law Offenses .... 1657 3. The Witzke and Wessels Spying Cases ............. 1666 C. THE MODERN ERA ................................. 1671 1. Aiding the Enemy ............................ 1672 2. Spying
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