Military Law Jurisdiction: Forums at the Intersection of War and Justice
Tara M. Lee
I propose a broader application of existing court-martial jurisdiction as a means of addressing this new category of criminal-enemy and mooting the main criticisms of the proposed commissions. There are independent precedents and justifications for the commissions themselves. This paper and many others, in much greater detail, make it clear that military commission prosecutions remain a legitimate, viable option. The ideas forwarded here should not diminish the fact that we can convene commissions as the President’s Military Order intends. At most, I might suggest that convening courts-martial rather than commissions better closes the gap between what we can do and what we should do to achieve redress.
Recognizing that potential courts-martial jurisdiction over war criminals exists, some commentators have suggested that to achieve jurisdiction over all the potential defendants described in the Military Order, amendment of the Uniform Code of Military Justice would be necessary. Part I of this paper presents an argument, based in part on two very recent federal court decisions, as to why such amendment may not be necessary. In Part II, the paper reviews some of the standing precedent for prosecuting war crimes with military courts. And in Part III, it examines the jurisdictional objections that have been raised regarding the President's proposed military commissions, as a backdrop for finally assessing the aptness of the courts-martial option.
The events of
I. Potential Courts-Martial Jurisdiction Over the Intended Military Commission Defendants
Article 21 of the UCMJ establishes military tribunal jurisdiction over those who violate the laws of war. Article 18 of the UCMJ provides that general courts-martial also have jurisdiction to try "any person who by the law of war is subject to trial by a military tribunal." Though Article 18 in its current form is thus sufficient to provide jurisdiction over "foreign enemy war criminals," jurisdiction over international terrorists who cannot successfully be described as war criminals is not as clear. The Honorable Robinson O. Everett, Senior Judge, U.S. Court of Military Appeals and professor of law at Duke University School of Law, has suggested that Congress, to facilitate the use of courts-martial against international terrorists, could revise Article 18 to include reference to the law of nations as well as the law of war. He notes that "treating [terrorist offenses] as offenses against the law of nations is far easier to justify" than treating them as violations of the law of war.
Fully assessing whether the acts of September 11 violated the law of war as well as the law of nations is beyond the scope of this paper. I intend only to establish that if trial of "foreign enemy war criminals" is the objective, then courts-martial is an available means. It is worth note, though, that at least two federal courts have recently rejected the significance of the fact that our current "war against terrorism" is an "authorized use of force," rather than a "total, declared war" and have demonstrated a willingness to apply terms and rules from the law of war to defendants apprehended in the "war against terrorism."
example, the Fourth Circuit Court of Appeals ruled this month that the
confinement of Yaser Hamdi as an enemy combatant is lawful. Hamdi is an American citizen. He was captured fighting with the Taliban in
...For the judicial branch to trespass upon the exercise of the warmaking powers would be an infringement of the right to self-determination and self-governance at a time when the care of the common defense is most critical. This right of the people is no less a right because it is possessed collectively.
These interests do not carry less weight because the conflict in which Hamdi was captured is waged less against nation-states than against scattered and unpatriated forces. We have emphasized that the "unconventional aspects of the present struggle do not make its stakes any less grave." Nor does the nature of the present conflict render respect for the judgments of the political branches any less appropriate. We have noted that the "political branches are best positioned to comprehend this global war in its full context," and neither the absence of set-piece battles nor the intervals of calm between terrorist assaults suffice to nullify the warmaking authority entrusted to the executive and legislative branches.
Like Yaser Hamdi, Jose Padilla is an
American citizen detained in a Navy Brig as an enemy combatant without criminal
charges pending against him or access to legal counsel. Unlike Hamdi, though, Padilla was captured on
American soil and not by American soldiers on the field of battle. He was arrested on
Last month, a federal district court in New York also rejected Padilla's habeas corpus petition, ruling that: (1) the President has the authority to designate him an enemy combatant, despite the fact that he is an American citizen captured on American soil; and (2) the President, through the Secretary of Defense, has the authority to detain him as an enemy combatant for the duration of armed conflict with Al Qaeda.
Given the willingness of both these
courts to accept "enemy combatant" designations applied to
III. Judicial Precedent Supports Using Military Courts for War Crimes
Convening military courts to adjudicate offenses against the laws of war is by no means a new idea. Offenses against the law of war are regularly brought before military commissions. In fact, virtually every American armed conflict since the American Revolution has seen some form of military commission.
the most famous case of trial by military commission, and certainly the case
most referenced during the last year, is Ex
parte Quirin. The Quirin court reviewed the military
commission trials of eight German agents who put ashore in
By his Order creating the present Commission [President Roosevelt] has undertaken to direct the performance of those functions which may constitutionally be performed by the military arm of the nation in time of war.
An important incident to the conduct of war is the adoption of measures by the military commander not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war.
Supreme Court reached a similar conclusion when asked to decide whether the
post-World War II military commission prosecution of Japanese General Yamashita
for war crimes was lawful. In the fall
of 1945, an American military tribunal convened by the American post-war
commander in the
was authorized by military command, and was in complete conformity to the Act of Congress sanctioning the creation of such tribunals for the trial of offenses against the law of war committed by enemy combatants.
must also be noted that military trial of war criminals is not unique to the
American military justice system. In the
aftermath of World War II, over two thousand war crimes trials were conducted
by ten different countries, most through a form of military commission. There is ample domestic and international
precedent for the premise that persons committing war crimes are subject to
trial by military tribunal. Article 18
of the UCMJ simply adds the option of a
IV. Review of the Criticisms of Potential Military Commissions
Having set forth the judicial support for military commissions, it is proper to also assess the recent criticisms of potential military commission prosecutions. This paper does not directly address or attempt to refute all of the published criticisms of potential military commissions. Many others have done so. A brief review of the general criticisms of the potential commissions, however, will provide a useful backdrop for assessing the viability of the courts-martial option.
A. Jurisdictional Objections to Military Commissions
Before discussing the general objections to military commission jurisdiction, it is helpful to review the possible bases for jurisdiction. Military jurisdiction generally fits into two groupings -- cases where jurisdiction is based upon military occupation, such as martial law jurisdiction or military government jurisdiction, and cases where jurisdiction based on prosecution of violations of the laws of war. The potential sources of jurisdiction for military commissions can therefore be categorized as follows: (1) martial law jurisdiction (applying generally when the President directs the military to exercise judicial authority in areas where, or at times when, the civilian court system is no longer functioning); (2) military government jurisdiction (applying generally when the United States occupies all or part of a foreign country at the end of a war, as it did, for example, in Germany after World War II); and (3) law of war jurisdiction (generally applying when the offense is a violation of the international law of war).
1. Military commissions ought not be convened when the civilian courts are open and functioning
criticism is drawn in part, from a rule first enunciated by the U.S. Supreme
Court in a Civil War-era case, Ex Parte
holding (often referred to as the “open-court” rule) has been quoted by
some critics of the President’s Military Order, often without the context of
the full opinion, as a broad statement that the laws of war "can never be
applied to citizens in states which have upheld the authority of the government,
and where the courts are open and their process unobstructed." For example, legal arguments filed on behalf
of Jose Padilla, the American citizen arrested in
commission jurisdiction by citing Milligan
is hardly new legal tack. Herbert Haupt,
the Quirin defendant who claimed
American citizenship, relied heavily on the Milligan
language in his appeal, but the Quirin
court held Milligan to be
"inapplicable," distinguishing Lambert Milligan from Herbert Haupt by
noting that Milligan was "not an enemy belligerent." Judge Makaskey drew the same distinction with
regard to Jose Padilla last month. In
reaching the ruling that the President does have the authority to designate an
American citizen captured on American soil an unlawful combatant and detain him
without trial, Judge Mukaskey noted that "Padilla, like the [Quirin] saboteurs, is alleged to be in
active association with an enemy with whom the
then, should properly be read only as a statement of the criteria for martial
law jurisdiction, not as a limitation on military commission jurisdiction in
general. The Quirin
opinion, discussed at section IV, above, amply demonstrated that Milligan's "open-court" rule
limits when martial law courts can be established in the
2. The Military Order violates separation of powers; the President exceeded his executive powers by establishing a judicial forum without legislative authority to do so
One thrust of the criticism of President Bush's Military Order has been that it unconstitutionally established a new judicial forum without jurisdiction based on an appropriate legislative mandate to do so. Since last November, a number of legal scholars have argued that military trial of combatants, even of unlawful combatants, is unconstitutional without clear Congressional authorization in the form of a formal declaration of war or specific authorizing legislation. Neil Katyal and Lawrence Tribe have argued, for example, that "[t]he moment the President moves beyond detaining enemy combatants as war prisoners to actually adjudicating their guilt and meting out punishment...he has moved outside the perimeter of his role as Commander-in-Chief of our armed forces and entered a zone that involves judging and punishing alleged violations of the laws."
Katyal and Tribe note that Milligan found Congressional authority to be a prerequisite for military commission jurisdiction. They argue that this principle was “never repudiated in subsequent cases.” But that argument overlooks the fact that the legislative mandate for military commissions was far less clear in 1866 than it would be by 1916 and at all times subsequent.
The Milligan court prefaced its 1866 holding by noting that “it is not pretended that the commission was a court ordained and established by Congress.” By comparison, the Congressionally-enacted language of Article 21 of the UCMJ evidences clear legislative approval of military commission jurisdiction over enemy combatants. This statement of approval can be traced to at least 1916, when Article of War 15, the predecessor to UCMJ Article 21, was first enacted.
A legislative mandate for military court trial of war crimes is far easier to discern now than it was in 1866. Milligan’s reluctance to uphold a military commission based on the Court’s concerns regarding proper separation of powers therefore ought not carry through to form the grounds for jurisdictional criticisms of war crimes tribunals or courts-martial today.
B. The Procedural Objections to Trying Enemy Combatants at Military Commissions
There has also been quite a lot of criticism levied at the so-called procedural "short-cuts" authorized in the President's Military Order. The question of how much due process is due accused non-citizen terrorists has been the subject of numerous articles and speeches in the last year, most clamoring for "the kind of fundamentally fair trial process that America has held up to the world as the standard for criminal adjudications." Many of the articles critical of potential procedural shortcomings cited concerns such as: the absence of some form of grand-jury-like presentment; the possibility of closed rather than open trials; the absence of the opportunity for the accused to retain counsel of his choice; the possibility that the death penalty could be awarded by a non-unanimous verdict, and the absence of full appellate rights, including the opportunity to petition the U.S. Supreme Court for a writ of certiorari.
Following courts-martial procedures, rather than those authorized by the DOD regulations would certainly avert many, if not all, of the above criticisms, and many of those criticizing the commissions have conceded as much. It is certainly to imagine someone arguing that international terrorists and other unprivileged combatants are entitled to more due process that we routinely afford the men and women serving in the American armed forces.
The dogmas of the quiet past, are inadequate to the stormy present.
Second Annual Message to Congress
The impediment to courts-martial jurisdiction over foreign enemy war criminals is one of dogma, not of law. For almost a century we have had a solid constitutional jurisdictional basis for convening courts-martial over this type of criminal and have not done so. For most of that time, though, we could safely assume that the greatest threats to our national security would come from state actors susceptible to diplomatic means and measures. Until recently, we could reasonably believe that war crimes death-tolling in the thousands would not take place on American soil. Those beliefs, and the dogmas that developed around them, are clearly inadequate now.
Both the jurisdictional and procedural objections raised by critics of the President's planned military commission are substantially resolved through a broader application of existing courts-martial jurisdiction. Convening legislatively authorized courts-martial is a solution that potentially appeases both legislative historians and constitutional scholars. We have options under our system of military justice. Convening military commissions is something we can do, convening full courts-martial might be something we should do.
 President Bush's November 13, 2001 Military
Order sets forth three categories of individuals to be potentially tried by
military commission: (1) anyone who there is reason to believe was a
member of Al Qaeda; (2) anyone who there
is reason to believe has engaged in, aided or abetted, or conspired to commit,
acts of international terrorism, or acts in preparation therefor, that have
caused, threatened to cause, or have as their aim to cause, injury to or
adverse effects on the United States, its citizens, national security, foreign
policy, or economy; or (3) anyone who
there is reason to believe has knowingly harbored one or more individuals
described in the first two categories.
Military Order 222, Detention, Treatment, and Trial of Certain
Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833, § 2(a)(1) (
 This statement of approval can be traced to at least
1916. Article of War 15, (adopted in
1916) and the predecessor to the UCMJ's
Article 21, contained substantially the same language as UCMJ Article 21. The American Bar Association Task Force on
Terrorism and the Law Report and Recommendations on Military Commissions,
Robinson O. Everett, "The Law of
War: Military Tribunals and the War on Terrorism," 48 FED. LAW. 20
(2001). See also Major Michael A. Newton,
 On this topic, see Major Mark S. Martins,
 Hamdi v. Rumsfeld, 2003
 Citing Hamdi v. Rumsfeld, 296 F.3d 278, 283 (4th Cir. 2002).
 Hamdi v. Rumsfeld, 2003
 Padilla was
 For a history of early American military
commissions, see Major Timothy C.
Parte Quirin, 317 U.S. 1 (1942). Four of the Quirin defendants put ashore from a
German submarine on
 In re Yamashita, 327
 Yamashita, 327
Article 2 includes among those persons subject to the Articles of War the personnel of our own military establishment. But this, as Article 12 indicates, does not exclude from the class of persons subject to trial by military commissions “any other person who by the law of war is subject to trial by military tribunals,” and who, under Article 12, may be tried by court-martial, or under Article 15 by military commission.
… Congress, by sanctioning trial of enemy combatants for violations of the law of war by military commission, has not attempted to codify the law of war or to mark its precise boundaries. Instead, by Article 15, it had incorporated, by reference, as within the preexisting jurisdiction of military commissions … all offenses which are defined as such by the law of war, and which may constitutionally be included within that jurisdiction.
 See Jones, supra, at 168, citing "Progress Report of War Crimes Trials from Data Available on March 1st, 1948," in the United Nations War Crimes Commission, History of the United Nations War Crimes Commissions and the Development of the Laws of War (London: His Majesty's Stationery Office, 1948), 518 (reporting 1,991 cases); and United Nations War Crimes Commission, Law Reports, vol. 15, Digest of Laws and Cases (London: His Majesty's Stationery Office, 1949), xvi (reporting 2,003 cases).
 This paper limits review of the criticisms
raised regarding military tribunals to the practical areas of jurisdiction and
procedure. It should be noted, though,
that some scholars in jurisprudence have also made objections to the
administration's approach to the proposed commissions on philosophical grounds. George P. Fletcher, Professor of
 See e.g., Major General Michael J. Nardotti, Jr., USA, (ret.), Military Commissions, Army Law, March 2002, at 1 (transcript of remarks delivered to the Senate Judiciary Committee SubCommittee on Administrative Oversight and the Courts on December 4, 2001).
 Many other aspects of the Military Order are well beyond the scope of this paper. For example, discussion of whether all acts described in the order would qualify as war crimes under international law, or whether those who merely harbor members of Al Qaeda have violated any international law, would require entirely separate papers. For purposes of this analysis, I accept and assume that our objective is to bring "foreign enemy war criminals" to trial in a manner that is legal, reasonably expedient, and just.
 I have derived these three categories of jurisdiction from dicta in the dissenting opinion filed by four Justices of the Ex Parte Milligan court. I have adopted the three classifications from the 1866 opinion because I believe this properly recognizes that crimes against the law of war can be traditionally be tried under "military law" by either commission or court-martial. Most modern texts recognize four, rather than three types of military jurisdiction (those four being "martial law," "military government," "law of war," and "military justice," with "military justice" referencing generally the court-martial and other discipline of active duty service members. See e.g., Diane Orentlicher, and Robert Kogod Goldman, When Justice Goes to War: Prosecuting Terrorists Before Military Commissions, 25 Harv. J.L. Pub. Pol'y 653, 655, note 5 (2002).) The language I refer to from the Milligan opinion, describing three categories of jurisdiction, is as follows:
There are under
the Constitution three kinds of military jurisdiction: one to be exercised both
in peace and war; another to be exercised in time of foreign war without the
boundaries of the United States, or in time of rebellion and civil war within
states or districts occupied by rebels treated as belligerents; and a third to
be exercised in time of invasion or insurrection within the limits of the
United States, or during rebellion within the limits of states maintaining
adhesion to the National Government, when the public danger requires its
exercise. The first of these may be
called jurisdiction under MILITARY LAW, and is found in acts of Congress
prescribing rules and articles of war, or otherwise providing for the
government of the national forces; the second may be distinguished as MILITARY
GOVERNMENT, superseding, as far as may be deemed expedient, the local law, and
exercised by the military commander under the direction of the President, with
the express or implied sanction of Congress; while the third may be denominated
MARTIAL LAW PROPER, and is called into action by Congress, or temporarily, when
the action of Congress cannot be invited, and in the case of justifying or
excusing peril, by the President, in times of insurrection or invasion, or of
civil or foreign war, within districts or localities where ordinary law no
longer adequately secures public safety and private rights. Ex
Parte Milligan, 71
v. Kahanamok, 327 U.S. 304 (1945) provides a thorough review of martial law
jurisdiction. In that case, the U.S.
Supreme Court reviewed the cases of two civilians, Duncan and White, who were
convicted by military commissions in
 Tribunals conducted under this type of
jurisdiction are fairly rare, but have been affirmed by the U.S. Supreme
Court. In 1952, the Court recognized
that the United States Court of the Allied High Commission, established in the
American Zone in Occupied Germany, had the constitutional authority to try
civilian Yvette J. Madsen for the murder of her active duty husband. While denying Madsen’s habeas petition, the
Court held that “as Commander-in-Chief of the Army and Navy of the
Parte Milligan concerned the trial of a citizen of
 Padilla v. Bush, 2002
 The most emphatic statement of the Milligan "open-court" rule as a limitation on martial law jurisdiction came from the Supreme Court’s 1945 Duncan v. Kahanamok opinion:
The so-called "open court" rule of the Milligan case, to be sure, has been the subject of severe criticism, especially by military commentators. That criticism is repeated by the Government in these cases. It is said that the fact that courts are open is but one of many factors relevant to determining the necessity and hence the constitutionality of military trials of civilians. The argument is made that however adequate the "open court" rule may have been in 1628 or 1864 it is distinctly unsuited to modern warfare conditions where all of the territories of a warring nation may be in combat zones or imminently threatened with long-range attack even while civil courts are operating. Hence if a military commander, on the basis of his conception of military necessity, requires all civilians accused of crime to be tried summarily before martial law tribunals, the Bill of Rights must bow humbly to his judgment despite the unquestioned ability of the civil courts to exercise their criminal jurisdiction.
The argument thus advanced is as untenable today as it was when cast in the language of the Plantagenets, the Tudors and the Stuarts. It is a rank appeal to abandon the fate of all our liberties to the reasonableness of the judgment of those who are trained primarily for war. It seeks to justify military usurpation of civilian authority to punish crime without regard to the potency of the Bill of Rights. It deserves repudiation.
Duncan v. Kahanamok, 327
 See e.g Orentlicher, supra, at 655-666 (arguing that the contemporary threat of international terrorism does not satisfy the stringent test for invoking martial law jurisdiction set forth in Milligan).
 Neil N. Katyal, and
 The American Bar Association Task Force on
Terrorism and the Law Report and Recommendations on Military Commissions notes
that the language of UCMJ Article 21 and Article of War 15 were substantially
the same, and reports that Congress repeated the language specifically intending
to preserve the traditional jurisdiction of military commissions over enemy
combatants. See American Bar Association Task Force on Terrorism and the Law
Report and Recommendations on Military Commissions,
 A few commentators have also argued that in “the middle of a grave conflict with an efficient and undeterrable adversary,” the streamlined procedures of military commissions may actually be the most “practicable” course. Ruth Wedgwood, Military Commissions: Al Qaeda, Terrorism, and Military Commissions, 96 A. J. I. L. 328 (2002) (pointing out that federal court Al Qaeda trials would present problems related to national security and classified information as well as problems related to the personal security of judges and juries).
 J. Gordon Forester, Jr., and Kevin J. Barry, Military Commissions: Meeting American Standards of Justice, 49 FEDR. LAW. 28 (2002).
DOD Military Commission Order No. 1, Procedures
for Trials by Military Commission of Certain Non-United States Citizens in the
War Against Terrorism, http://www.defenselink.mil/
 Some critics of the tribunals have conceded as much. See e.g., Forester and Barry, supra, at 28 (“If they are to be fundamentally fair, military commissions must follow court-martial procedures and be subject to some sort of meaningful judicial review.”)
 “One important thing to remember [as the
rules for detaining non-citizen terrorists and trying them] are set in motion
is that history will judge how the
 The current language of Article 18 of the UCMJ was first enacted in the 1916 Articles of War.