Did you and jellyfish know that liberal icon and originator of much modern American fascism, FDR, used military tribunals IN THE UNITED STATES itself against civilians? In secret, yet?
Military commissions derive their authority from the United States Constitution (Articles I and II) and the powers vested in them by statutory law (e.g., 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 1846-48, when “councils of war” were convened by General Winfield Scott (General Orders, No. 20 of February 19, 1847, reprinted 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 conferred by statute 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 commissions and courts-martial.
The first major legal test of the jurisdiction of military commissions occurred in the period immediately after the Civil War in the landmark 1866 United States Supreme Court decision, Ex Parte Milligan (see below). The jurisdictional boundaries of military commissions were further solidified during World War I when Congress adopted Article of War 15.At the time Judge Advocate General Crowder, seeking to clarify the status of the military commission, argued “a military commission is our common-law war court. It has no statutory existence, 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 of prosecuting violations of the law of war. Article of War 15 was later the basis for Article 21 of the Uniform Code of Military Justice, first adopted in 1950 and put into force in 1951.
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1. Statutory Authority
Uniform Code of Military Justice. The U.C.M.J. is the basis of the military system of justice in the United States armed forces. Article 21 of the U.C.M.J. provides the authority for the existence and operation of military tribunals. The U.C.M.J. was originally promulgated in 1950 as Pub. L. No. 81-506, 64 Stat. 107-49, and came into force May 31, 1951. It is codified at 10 United States Code §§ 801-946.A comprehensive legislative history of the U.C.M.J. was recently published by W.S. Hein, Index and Legislative History: Uniform Code of Military Justice (2000).
The Constitution of the United States. Article I, section 8, clause 10 of the Constitution of the United States provides authority for national trials for those who commit criminal offenses against “the law of Nations.” Article II confers on the President the title of “Commander in Chief,” thereby authorizing him to establish military commissions.
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Ex Parte Quirin, 317 US 1 (1942). In Quirin the Supreme Court denied habeas relief to eight Germans detained during trial by a military commission. They were held on charges that they violated the law of war (specifically articles 81 and 82 of the Articles of War) and that they had committed acts of sabotage and spying. The Supreme Court upheld the jurisdiction of the commission. The Court reasoned that article 15 of the Articles of War gave Congress its authority to define and punish offenses against the law of nations and that this included sanctioning the jurisdiction of military commissions to try persons for violations of the law of war. Most notably, the Court refused to be drawn into a discussion of the jurisdictional boundaries of military commissions when it stated, “we have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war.” Also available at 63 S.Ct. 1 & 87 L.Ed. 3.
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