Military tribunals in the United States

Source: Wikipedia, the free encyclopedia.

Military tribunals in the United States are

jurors. Military tribunals are distinct from courts-martial
.

A military tribunal is an inquisitorial system based on charges brought by military authorities, prosecuted by a military authority, judged by military officers, and sentenced by military officers against a member of an enemy army.

The United States has made use of military tribunals or commissions, rather than rely on a

court-martial
, within the military justice system, during times of declared war or rebellion.

Most recently, as discussed below, the administration of

unlawful enemy combatants", mostly individuals captured abroad and held at a prison camp at a military base at Guantánamo Bay
, Cuba.

Jurisdiction

A military tribunal or commission is most usually used to refer to a court that asserts jurisdiction over persons who are members of an enemy army, are held in military custody, and are accused of a violation of the

courts-martial
generally take jurisdiction over only members of their own military. A military tribunal or commission may still use the rules and procedures of a court-martial, although that is not generally the case.

Military tribunals also, generally speaking, do not assert jurisdiction over people who are acknowledged to be

combatants
and acting in violation of the laws of war.

History

spying and executed by hanging.[1] Commissions were also used by General (and later President) Andrew Jackson during the War of 1812 to try a British spy; commissions, labeled "Councils of War," were also used in the Mexican–American War.[1]

The

Benjamin Gwinn Harris
. All were convicted, and Harris was expelled from the Congress as a result. All of these tribunals were concluded prior to the Supreme Court's decision in Milligan.

The use of military tribunals in cases of civilians was often controversial, as tribunals represented a form of justice alien to the

unconstitutional, with its decision in Ex parte Milligan
(1866).

Military commissions were also used in the Philippines in the aftermath of the Spanish–American War; as these were used in an active war zone as an expedient of war, they did not fall afoul of Milligan.[1]

During

American occupation zone of Germany
.

Hamdi v. Rumsfeld

Hamdi v. Rumsfeld, 542 U.S. 507 (2004), is a

U.S. government to detain enemy combatants, including U.S. citizens, but ruled that detainees who are U.S. citizens must have the rights of due process
, and the ability to challenge their enemy combatant status before an impartial authority.

It reversed the dismissal by a lower court of a

U.S. citizen who was being detained indefinitely as an illegal enemy combatant after being captured in Afghanistan in 2001. Following the court's decision, on October 9, 2004, the U.S. government released Hamdi without charge and deported him to Saudi Arabia
, where his family lived and he had grown up, on the condition that he renounce his U.S. citizenship and commit to travel prohibitions and other conditions.

Argued April 28, 2004

Decided June 28, 2004

Trial by military commission of the Guantanamo detainees

Main article: Guantanamo military commission

The currently convened military commissions at the Guantanamo Bay detention camp are governed by the Military Commissions Act of 2009.

See also

References

  1. ^ a b c Bradley & Goldsmith, Foreign Relations Law, 2nd Edition, Aspen Publishers, 2006, p.266.
  2. ISBN 0-375-50785-X

Further reading

  • Elsea, Jennifer K. Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court." Washington, D.C.: Congressional Research Service, 2019.
  • Fisher, Louis. Military Tribunals & Presidential Power: American Revolution to the War on Terrorism (2005)
  • Hasian, Marouf. In the name of necessity: Military tribunals and the loss of American civil liberties (University of Alabama Press, 2012)
  • Williams, Frank J., and Nicole J. Benjamin. "Military Trials of Terrorists: From the Lincoln Conspirators to the Guantanamo Inmates." Northern Kentucky. Law Review 39 (2012): 609+ online
  • Witt, John Fabian. Lincoln's Code: The Laws of War in American History (2012)

International tribunals

  • Heller, by Kevin Jon. The Nuremberg Military Tribunals and the Origins of International Criminal Law [Oxford University Press, 2011(, 509 pp,
  • Schabas, William A. "International war crimes tribunals and the United States." Diplomatic History 35.5 (2011): 769–786.

External links

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