A Call to Protect Civilian Justice: Beware the Creep of Military Tribunals

March 3, 2008

ACS is pleased to distribute an Issue Brief by Anthony F. Renzo, Professor of Law at Vermont Law School, entitled, "A Call to Protect Civilian Justice: Beware the Creep of Military Tribunals." In cases such as Al-Marri v. Wright, a case presently awaiting decision on rehearing in the Fourth Circuit, the Bush Administration has claimed authority to subject civilians detained in the United States to trial by military commission. In this Issue Brief, Professor Renzo examines and evaluates the Administration's claim, finding it as unprecedented in scope as it is lacking in historical support. Professor Renzo explains that "[t]he Constitution places the power to punish a civilian for wrongdoing, including criminal conduct in support of enemy organizations, in the hands of an independent civilian court and jury." Examining the constitutional text and English and American history, Professor Renzo traces a profound resistance to the encroachment of military tribunals on the jurisdiction of civilian courts, noting "[t]he very purpose of the original English common law right to trial by a civilian jury was to protect against the oppression of the King's use of military courts and judges who owed their loyalty to the King." Professor Renzo concludes that constitutional text and tradition require that a civilian be provided with a civilian jury trial unless a civilian court determines that the detainee is not a civilian, but is rather "either under the command of the enemy's armed forces or engaged in battlefield hostilities against American forces."

Read the full Issue Brief here: Renzo_Issue_Brief_Final_0

By Anthony F. Renzo