In the U.S. must treason be tried by a military tribunal? I've run into the claim that in the U.S. that treason must be tried by a military tribunal, even if the accused is a civilian. Is this true? I tried Googling the question, but it seems I don't know enough about the law to be able to find the answer that way.
It is not the case that treason must be tried by a military tribunal. See for example US v. Kawakita, which was an ordinary civilian jury trial. I cannot even imagine why one would think that there is any such requirement. Here is the federal law against treason, and nothing says "offenses must be tried in a military court". Perhaps that misconception was based on the use of military tribunals during the American Revolution, which preceded the creation of a US legal system.
"Seditious libel" has happened before, but not in the US. This comes up in NY Times v. Sullivan, which notes that For good reason, "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence." City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N.E. This Volokh article gives various citations showing that a government entity cannot sue for libel.
The Constitution does not define any crimes (except for an explicit limit on what can be considered 'treason.') It places limits on what penalties the government may apply for crimes and how crimes are tried in court, but it does not itself actually create any criminal offenses. Rather, state and federal law do that. Having said that, if a state government creates a crime of murder (which, obviously, they all do,) the Equal Protection Clause of the 14th Amendment does require that that law protect all people within the jurisdiction of that state. That is, a state cannot make a law criminalizing the murder of a white person, but not of a black person, for example. States can't just pick and choose who is protected by their laws. It would not violate the U.S. Constitution if a state completely decriminalized murder, though. It's exceptionally unlikely to happen, but it would not be a violation of the Constitution. Depending on exactly what you mean by 'murder,' it could be argued that murder by the government is unconstitutional, though. The 14th Amendment bans states from depriving anyone of life without due process of law: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Similarly, the 5th Amendment provides an equivalent protection from the federal government: No person... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law
Does he have some kind of libel or invasion of privacy case? The description of the "art work" is somewhat inconclusive. I will assume that the red lipstick and blue eye shadow in the fictional poster are suggestive of that soldier's "makeup". If the World War Two soldier were still alive and a straight male, he might have a claim of defamation insofar as the poster portrayed him as having a sexual orientation which is inaccurate, detrimental to his reputation, and tending to dissuade others from associating with the soldier. Policies against sexual discrimination aside, no straight male likes being falsely characterized as to sexual orientation (in part because of the undeniably harmful, lasting impact something like this would have in his environment). The defendant's possible allegation that the "art work" was hyperbole would be unavailing. That is because the suggestive poster is likely to impinge on viewers a detrimental concept of the soldier even if it is obvious to those viewers that the poster was not an actual, color photograph taken of him during the World War II. In most jurisdictions in the US, the defamed soldier would need to file suit within a year from the publication of the poster (an exception is Tennessee: six months) because the statute of limitations for claims of defamation is shorter than most others.
We look first to the Hutaree prosecution of 2012, US v. Stone where defendants were charged with seditious conspiracy: Specifically, the Government charges Defendants with conspiring to “oppose by force the authority” of the United States Government. Essential to that charge, Defendants must have agreed to oppose some positive assertion of authority by the United States Government; mere violations of the law do not suffice. Baldwin v. Franks, 120 U.S. 678, 693 (1887). In Baldwin, SCOTUS found (emphasis added) that All, therefore, depends on that part of the section which provides a punishment for ‘opposing’ by force the authority of the United States . . . . This evidently implies force against the government as a government. To constitute an offense under the first clause, the authority of the government must be opposed; that is to say, force must be brought to resist some positive assertion of authority by the government. A mere violation of law is not enough; there must be an attempt to prevent the actual exercise of authority.
In this case the Plaintiff, James Maloney, has previously been charged with a crime for possession of nunchucks. He is apparently suing to enjoin further enforcement of the law under which he was previously charged. US Federal courts will only take up a "case or controversy", which means an issue where actual, not theoretical rights are at stake, and in order to vindicate a constitutional right, it must either have previously been violated, or there must be a plausible and immediate threat to it. Claiming that a law is unconstitutional as part of a defense to a charge of violating that law is a common and probably the best known method of challenging a law (or a government action) for unconstitutionality. But there are other ways. One way is to apply for an injunction against enforcement of the law. That is the procedure that was followed in, for example, the recent case where there was a ruling against the ADA in a district court. In order to use that procedure, the plaintiff must present evidence that there is a credible threat that the law will be invoked against him (or her) if the action which the plaintiff claims is protected by a constitutional right is taken. In short, one need not put oneself in a position where one goes to prison or is found guilty of a crime if one loses the case to challenge the constitutionality of a law or of a government policy or action. But one must establish that it is a real "case or controversy", with real parties in opposition to each other, and real rights at stake, not a mere law student's exercise, nor a collusive case, with both "sides" having the same actual goal. In the case reported, the previous criminal charge helps to establish that this is a real issue.
An "inquisitorial" system is one where the Judge or Magistrate actively questions the accused and witnesses to attempt to determine the facts. The Judge may also determine, at least in part, what witnesses to call in what order. An "adversarial" system is one in which each side presents its case, and the judge acts as an umpire deciding on procedure, and possibly makes the final ruling (or directs a jury to do so) but is not actively involved in questioning witnesses or deciding what witnesses to call. I don't see anything which would prevent a common-law jurisdiction from establishing an "inquisitorial" system by statute except longstanding tradition, but as far as i know no such jurisdiction has ever had such a system in place for dealing with criminal matters. The informal procedures in some small claims courts do have judges more actively involved than in other courts. I think this is also true in some family courts as well. I think I have heard of some civil-law jurisdictions which use something like an adversary system, but i am not sure of that. Certainly a civil-law country could pass a law setting up such a system if it chose to.
So can Congress itself just declare someone guilty of insurrection and bar them from standing in elections, without that being considered a bill of attainder? No. Even if it isn't a bill of attainder, the Congress can't do that. Or do they have to delegate the finding of fact (in re insurrection) to another body, e.g. to the judiciary? The issue would be presented when someone ran for public office and their qualifications were challenged, and would be resolved by state and local election officials, subject to judicial review. If that was not done, Congress could nonetheless refuse to recognize a state certification of someone's election on these grounds.