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Are MIlitary Tribunals Justified?

June 5, 2008

A report by AP writer Andrew Selsky reported on the military tribunal for Khalid Sheikh Mohammed.  Khalid Sheikh Mohammed has stated that he would welcome becoming a “marytr” and sang versus from the Quran, rejected his attorneys and told Judge Ralph Kohlmann, a Marine colonel, that he wants to represent himself at the war crimes trial(a sure way to get the marytrdom that he seeks).

The arraignment begins the highest-profile test yet of the military’s tribunal system, which faces an uncertain future.  The Supreme Court is to rule this month on the “rights” of Guantanamo prisoners, potentialy delaying or halting the proceedings.

Those on the left would love to have the tribunals declared unlawful, and to force the Bush Administration to utilize civilian courts to try military cases.  This is not the first time the Supreme Court has heard cases regarding military commissions and tribunals. 

In March, 2002, Steven Young, a reference librarian at the Catholic University of America, Kathryn J. DuFour Law Library wrote a report on the history and use of military commissions.

“To protect the United States and its citizens, and for the effective conduct of military operationsand prevention of terrorist attacks, it is necessary for individuals subject to this order… to be tried for violations of the Laws of War and other applicable laws by military tribunals.”  [Military Orader:  Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism.” 1(e).issued by President George W. Bush(November 13, 2001)].

Americans need to ask two questions.  First, are military tribunals legal?  Second, are the tribunals necessary?

Yale University’s Avalon Project has a an interesting and informative report on the history of military commissions. 

Military commissions derive their authority from the United States Constitution(Articles I and II) and the powers vested in them by statutory law(eg., Authorization for use of Military Force, PL 107-40).  Although their origins in the United States can be traced to the U.S.-Mexico War of 1846-1848, when “councils of ar” were convened by General Winfield Scott(General Orders, No. 20 of February 19, 1847, reprinted in in Appendix 1 of Military Government and Martial Law), the validity and jurisdiction of military commissions was not fully tested until the Civil War.  In 1863 Union Army General Order 100 helped to solidify the place of military commissions in the field of military justice by stating that under the Common Law of War military commissions were allowed to prosecute “cases which do not come within the Rules  and Articles of War, or the jurisdiction confered bystatute on courts-martial.”  This statement was reiterated by the Supreme Court in Ex PArte Vallandigham, 68 US 243(1863), when the court drew a clear distinction between military commission and courts-martial.  The first major test of the jurisdiction of military commission occurred in the period immediately after the Civil War in the landmark 1866 United States Supreme Court decision, Ex Parte Milligan.  The jurisdictional boundaries of military commissions were further solidified during World War I when Congress adopted the Article of War 15.  At the time Judge Advocate General Crowder, seeking to clarify the staus of the military commission, argued “a military commission is our common-law war court.  It has no statutory existancew, though it is recognized by statute law.”(S. Rep. No. 130, 64th Cong., 1st Sess.)  This formal recognition by Congress authorized the use of military commissions for the purposes ofviolations of the Law of War.  Article of War 15 was later the basis for for Article 21 of the Uniform Code of Military Justice, first adopted in 1950 and put into force in 1951.  Article 21 of the Uniform Code of Military Justice states: jusrisdiction of Courts-martial not Exclusive.  The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the Law of War may be tried by military commissions, provost courts, or other military tribunals.

The UCMJ is a federal law, enacted by Congress.  Its provisions are contained in United States Code, Title 10, Chapter 47.  Article 36 of the UCMJ allows the President to prescribe Rules and Procedures to implement the provisions of the UCMJ.

This should answer the first question, Are military tribunals legal?  Historically and by statute, yes.  Are they necessary, given the fact that the civilian court system has no jurisdiction in the Law of War, the need to keep intelligence classified and secret, and the civilian courts tendancy to lean to give Constitutionaly protected rights to foreign born people who have no Constitutionaly guarrenteed rights, military commissions are very necessary to ensure that these terrorists don’t have an opportunity to carry out their acts of war against the United States.

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