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Congress has recently authorized military commissions to try individuals for domestic-law offenses—such as providing material support to terrorism, and conspiring to commit law-of-war offenses—in addition to offenses against the international laws of war. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution guarantees. The constitutionality of such an abrogation of Article III’s criminal-trial guarantees has been debated in many of the Nation’s wars, without clear resolution. The Article III question is now the subject of a potentially landmark case, al Bahlul v. United States, that will be before the Supreme Court shortly. Moreover, the new President has indicated support for further military trials, including even against United States citizens.

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. As this Article explains, however, when it comes to adjudication of war-related domestic-law offenses, neither the government nor the appellate judges who have defended such commission trials have offered any such justifications that would be sufficient to justify denial of the independent judge and jury that Article III guarantees. The government, and the judicial defenders of military tribunals, thus must rely—and have relied—almost exclusively upon historical claims of two kinds to defend the constitutionality of using 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 “carry[] on war as it had been carried on during the Revolution.” According to this argument, the Constitution was ratified against, and should be presumed not to have called into question, a purported “backdrop” of military criminal adjudication of offenses that were not violations of the international laws of war: court-martial proceedings, authorized by the Second Continental Congress and approved by General George Washington, against both spies and disloyal civilians who provided aid to the British. The earliest Congresses then purportedly confirmed this constitutional understanding by enacting statutes permitting military trials for spying, and for aiding the enemy—statutes that have remained in federal law ever since.

The Article offers the first comprehensive account of those Revolutionary War precedents, how they were understood in the decades just after the Constitution was ratified, and the ways in which those precedents, and the alleged statutory analogues, have been invoked as authority, and mischaracterized, in later wars. This history demonstrates that the received wisdom about those precedents is almost entirely mistaken; therefore they ought to provide little, if any, support for a new Article III exception for military adjudication of war-related domestic-law offenses.

The pre-constitutional history does, however, include one conspicuous aberration —a 1778 congressional resolution authorizing the trial by court-martial of civilians who provided a particular kind of aid to the British, which General Washington relied upon in 1780 as authority to convene a court-martial to try Joshua Hett Smith for assisting Benedict Arnold in the plot to capture West Point. In the Article, I argue that the Smith case—a striking deviation from Washington’s otherwise consistent conduct—should not be accorded much, if any, weight in interpreting Article III or in crafting exceptions to its criminal trial guarantees.

More broadly, this Article—together with another article that examines the government’s alternative reliance upon a series of military tribunal precedents in the Civil War and World War II (most importantly, the 1865 trial of the individuals accused of conspiring with John Wilkes Booth to kill Abraham Lincoln)—illustrates how a complex history can be misunderstood, and distorted, in the course of constitutional interpretation, particularly on questions of war powers.

Publication Citation

105 Geo. L.J. (forthcoming August 2017)