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A thread on the impossibility of US citizens today being subjected to military tribunals. @travis_view @PokerPolitics @rothschildmd @dappergander
Military tribunals were used (& abused) occasionally in early US history, particularly during the Civil War.
Military tribunals were used (& abused) occasionally in early US history, particularly during the Civil War.
In July 1865 the conspirators in the Lincoln assassination were subjected to military trials.
But in 1866 SCOTUS ruled unanimously that US citizens cannot be tried in military courts in areas where civilian courts are still in operation. https://www.britannica.com/event/Ex-Parte-Milligan
During wartime, captured foreign nationals have been subjected to military tribunals (the Philippine insurrection, German saboteurs in WWII). After 9/11, Bush used the base at Guantanamo to detain foreign nationals and subject them to military trials. https://slate.com/news-and-politics/2001/12/america-s-military-tribunals-through-the-ages.html
In 2002, the Bush administration tried to subject US citizen Jose Padilla to a military trial after he became a radical Muslim and gave material support to foreign terrorists. This attempt failed, and he was eventually tried in a civilian Federal court and convicted.
In 2004, in Rasul v Bush, SCOTUS ruled that foreign nationals held at Gitmo could petition Federal courts for writs of habeas corpus to review the legality of their detention.
https://www.oyez.org/cases/2003/03-334
https://www.oyez.org/cases/2003/03-334
In 2004, in Hamdi v Rumsfeld, SCOTUS ruled that the government had the right to detain enemy combatants, but US citizens caught fighting overseas must have the rights of due process, and the ability to challenge their enemy combatant status.
https://www.oyez.org/cases/2003/03-6696?page=3
https://www.oyez.org/cases/2003/03-6696?page=3
In 2006, in Hamdan v Rumsfeld, SCOTUS ruled that the administration did not have authority to set up these military commissions without congressional authorization; they did not comply with the Uniform Code of Military Justice & the Geneva Conventions.
https://www.oyez.org/cases/2005/05-184?mod=article_inline
https://www.oyez.org/cases/2005/05-184?mod=article_inline
In 2006, the GOP Congress passed the Military Commission Act of 2006 "to authorize trial by military commission for violations of the law of war, and for other purposes". The text was not clear as to whether US citizens could be designated as enemy combatants.
In 2007, in Boumediene v Bush, SCOTUS ruled that the prisoners had a right to the writ of habeas corpus under the Constitution and that the Military Commissions Act of 2006 was an unconstitutional suspension of that right.
https://www.oyez.org/cases/2007/06-1195
https://www.oyez.org/cases/2007/06-1195
The prisoners at Gitmo have all been foreign nationals, and the last one arrived in 2008. Even here, civilian lawyers have been involved in the process. But the nightmare of legal issues (& related torture scandals), have left few with an appetite for sending new detainees there.
Some have argued that the decision in Ex Parte Milligan is irrelevant because it was so long ago. But there are only 3 ways to overturn a SC decision: by an act of Congress to amend a statute, by Constitutional Amendment, or thru another SCOTUS decision. https://www.libertyproject.com/overturn-a-supreme-court-decision-2534252362.html
Supporters of #Qanon and Trump point to this 2018 EO, claiming it supports military tribunals for US citizens. It actually says nothing of the kind, and refers only to the Uniform Code of Military Justice. The word “civilian” is not found in the document. https://www.federalregister.gov/documents/2018/03/08/2018-04860/2018-amendments-to-the-manual-for-courts-martial-united-states
This EO is actually titled “2018 Amendments to the Manual for Courts-Martial.” It applies to military personnel only. The Uniform Code of Military Justice is not even used at Guantanamo, which operates under its own unique judicial system for foreign fighters.
They also point to an exchange between Sen. Graham & Brett Kavanaugh to justify mass arrests/military tribunals for US citizens, but they are referring to the (still very controversial) idea of handling US citizens captured overseas in war zones.
https://www.c-span.org/video/?c4747307/sen-graham-asks-military-tribunals
https://www.c-span.org/video/?c4747307/sen-graham-asks-military-tribunals
Some have argued that there are secret military trials of US citizens happening at Gitmo right now. But the few trials of enemy combatants occurring there are being reported by MSM reporters such as @carolrosenberg
Because it is so difficult to appeal their cases to the Supreme Court, military servicemembers are not only treated worse than civilian criminal defendants; they’re treated worse than the noncitizen enemy combatants being tried at Guantánamo. https://www.nytimes.com/2019/03/20/opinion/military-justice-congress.html?smtyp=cur&smid=tw-nytopinion
The Johnson v. Eisentrager ruling (1950) is frequently cited by Q fans who can't be bothered to understand it.
SCOTUS decided that US courts had no jurisdiction over German war criminals held in a US-run prison in Germany. It had nothing to do with US citizens.
SCOTUS decided that US courts had no jurisdiction over German war criminals held in a US-run prison in Germany. It had nothing to do with US citizens.
Also, secret trials and executions are forbidden by the 6th Amendment to the US Constitution. https://www.heritage.org/constitution/#!/amendments/6/essays/153/public-trial
The last time anyone was convicted of treason was after WWII. A US Attorney, after an FBI investigation, charged 'Tokyo Rose' w/Treason. She was tried & convicted in Federal Court. No military tribunal, no execution, later pardoned by President Ford. http://www.abajournal.com/magazine/article/1949_tokyo_rose_convicted_treason
