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CRS - Military Tribunals

CRS - Military Tribunals

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Published by Juan del Sur
Military Tribunals: Historical Patterns and Lessons

This report summarizes the types of military tribunals that have functioned from the Revolutionary War to the present time, explaining the legislative enactments that have guided these tribunals and the judicial decisions that have reviewed their constitutionality. One of the principal methods of legislative control over military trials, including tribunals, are the Articles of War that Congress enacts into law. The Constitution vests in Congress the power to “constitute Tribunals inferior to the supreme Court,” to “make rules for the Government and Regulation of the land and naval Forces,” and to “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” By enacting Articles of War, Congress defined not only the procedures but also the punishments to be applied to the field of military law.

July 9, 2004
Military Tribunals: Historical Patterns and Lessons

This report summarizes the types of military tribunals that have functioned from the Revolutionary War to the present time, explaining the legislative enactments that have guided these tribunals and the judicial decisions that have reviewed their constitutionality. One of the principal methods of legislative control over military trials, including tribunals, are the Articles of War that Congress enacts into law. The Constitution vests in Congress the power to “constitute Tribunals inferior to the supreme Court,” to “make rules for the Government and Regulation of the land and naval Forces,” and to “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” By enacting Articles of War, Congress defined not only the procedures but also the punishments to be applied to the field of military law.

July 9, 2004

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Published by: Juan del Sur on Apr 05, 2010
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Congressional Research Service 
 
˜
 
The Library of Congress 
CRS Report for Congress
Received through theCRS Web
Order Code RL32458
Military Tribunals:Historical Patterns and Lessons
July 9, 2004
Louis FisherSenior Specialist in Separation of PowersGovernment and Finance Division
 
Military Tribunals: Historical Patterns and Lessons
Summary
After the terrorist operations of September 11, 2001, President George W. Bushauthorized the creation of military tribunals to try individuals who offered assistanceto the attacks on New York City and Washington, D.C. The military order issued byPresident Bush closely tracks the model established by President Franklin D.Roosevelt for a military tribunal appointed in 1942 to try eight German saboteurs.In
 Ex parte Quirin
(1942), the Supreme Court unanimously upheld the jurisdictionof Roosevelt’s tribunal (also called “military commission”).This report summarizes the types of military tribunals that have functioned fromthe Revolutionary War to the present time, explaining the legislative enactments thathave guided these tribunals and the judicial decisions that have reviewed theirconstitutionality. One of the principal methods of legislative control over militarytrials, including tribunals, are the Articles of War that Congress enacts into law. TheConstitution vests in Congress the power to “constitute Tribunals inferior to thesupreme Court,” to “make rules for the Government and Regulation of the land andnaval Forces,” and to “define and punish Piracies and Felonies committed on the highSeas, and Offences against the Law of Nations.” By enacting Articles of War,Congress defined not only the procedures but also the punishments to be applied tothe field of military law.At various times, executive officials have claimed that the President hasauthority under the Constitution to create military tribunals and does not depend onstatutory authorization. The Supreme Court has never accepted that argument.Instead, it looks for implied or express statutory authority when upholding militarytribunals. On a number of occasions, federal courts have expressed concern thatmilitary tribunals enable an administration to exercise all three powers of government— legislative, executive, and judicial — and that the concentration of those powersthreatens individual rights and liberties.For other CRS reports on military tribunals, see CRS Report RL31191,
Terrorism and the Law of War: Trying Terrorists as War Criminals before MilitaryCommissions
, by Jennifer Elsea; CRS Report RL31600,
The Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison withProposed Legislation and the Uniform Code of Military Justice
, by Jennifer Elsea;and CRS Report RL31340,
 Military Tribunals: The Quirin Precedent 
, by LouisFisher.This report will be updated as events warrant.
 
Contents
Articles of War....................................................1Founding Principles................................................3Andrew Jackson...................................................6Martial Law in New Orleans.....................................6The Seminole War.............................................8The Mexican War................................................11Scope of Executive Authority.......................................14The Civil War...................................................16Suspending Habeas Corpus.....................................17Martial Law in Missouri.......................................18Laws Recognizing Tribunals....................................19The Dakota Trials............................................20Judicial Review..................................................22John Merryman..............................................22Clement Vallandigham........................................23The Milligan Case............................................24Other Judicial Rulings.........................................25Captain Henry Wirz...............................................26Conspirators of Lincolns Assassination...............................28Clemency for Surratt..........................................30Samuel A. Mudd.............................................31From the Civil War to World War II..................................32The Nazi Saboteur Case............................................37Why a Tribunal?.............................................37Interlude in Civil Court........................................39The Per Curiam..............................................41The Full Opinion.............................................42Evaluating the Decision........................................43Another Submarine in 1944.....................................46Other World War II Tribunals.......................................47Martial Law in Hawaii.........................................47Trials of Three Japanese Leaders ................................53Command Responsibility.......................................58The Eisentrager Decision...........................................59

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