General George Washington used military tribunals during the
American Revolution, including the prosecution of British
Major John André, who was sentenced to death for spying and executed by hanging.
[1] Commissions were also used by General (and later President)
Andrew Jackson during the
War of 1812 to try a British spy; commissions, labeled "Councils of War," were also used in the
Mexican-American War.
[1]
The
Union used military tribunals during and in the immediate aftermath of the
American Civil War.
[2] Military tribunals were used to try Native Americans who fought the
United States during the
Indian Wars which occurred during the Civil War; the thirty-eight people who were executed after the
Dakota War of 1862 were sentenced by a military tribunal. The so-called
Lincoln conspirators were also tried by military commission in the spring and summer of 1865. The most prominent civilians tried in this way were Democratic politicians Clement L. Vallandigham,
Lambdin P. Milligan, and Benjamin Gwinn Harris. All were convicted, and Harris was expelled from the Congress as a result. All of these tribunals were concluded prior to the Supreme Court's decision in
Milligan.
The use of military tribunals in cases of civilians was often controversial, as tribunals represented a form of justice alien to the common law, which governs criminal justice in the United States, and provides for trial by jury, the presumption of innocence, forbids secret evidence, and provides for public proceedings. Critics of the Civil War military tribunals charged that they had become a political weapon, for which the accused had no legal recourse to the regularly constituted courts, and no recourse whatsoever except through an appeal to the President. The U.S. Supreme Court agreed, and unanimously ruled that military tribunals used to try civilians in any jurisdiction where the civil courts were functioning were unconstitutional, with its decision in
Ex parte Milligan (1866).
Military commissions were also used in the Philippines in the aftermath of the
Spanish-American War; as these were used in an active war zone as an expedient of war, they did not fall afoul of
Milligan.
[1]
During
World War II, President
Franklin D. Roosevelt ordered a military tribunal for eight
German prisoners accused of espionage and planning sabotage in the United States as part of
Operation Pastorius. Roosevelt's decision was challenged, but upheld, in
Ex parte Quirin (1942). All eight of the accused were convicted and sentenced to death. Six were executed by electric chair at the
District of Columbia jail on August 8, 1942. Two who had given evidence against the others had their sentences reduced by Roosevelt to prison terms. In 1948, they were released by President
Harry S. Truman and deported to the
American Zone of occupied Germany.