Military Courts Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

Military units use special criminal courts to further discipline and order. The Uniform Code of Military Justice (1950, later amended), based on the U.S. Congress’s Article I power to “make rules for the governance . . . of the land and naval forces,” authorizes the military to create two kinds of military courts: courts-martial and military commissions.

Courts-Martial

Courts-martial exist in most Anglo-American militaries. They exist to try service personnel and not civilians; indeed, although defendants enjoy numerous procedural rights (including the right to know the charges, the right to present defense evidence, and the right to appointed military counsel and privately retained civilian counsel), the trials fall short of the requirements of the U.S. Bill of Rights. Courts-martial may try service personnel only if the offenses charged are “service-related.”

Among these offenses are some, such as desertion or insubordination, that can be committed only by persons under military discipline. Others include ordinary crimes of violence or theft when committed by service personnel. The U.S. military processes some minor offenses through summary courts-martial, in which the accused self-represents before a single presiding commissioned officer. The accused can, however, refuse trial by summary court-martial and instead go before a special court-martial, which includes a military judge (a specially trained military lawyer who presides and enforces due process requirements) and a panel of at least three members (officers or enlisted with no formal legal training who perform functions similar to those of civilian juries). Each of these courts includes limitations to possible punishments. General courts-martial must be convened for the military equivalent of felony trials and must include a judge and a panel of at least five members. These courts-martial can impose serious punishments, including death, for violations of crimes listed in the Uniform Code.

Convening authorities are commanders of large military units; they create military courts and assign personnel (both judges and panels) to them. The Uniform Code prescribes trial procedure in advance, including rules of evidence. After a conviction, the convening authority can order the sentence carried out, or decline to do so. If put into effect, the sentence is reviewed by a court of criminal appeals, staffed by military lawyers, that can reduce it. From there, the defendant may petition for discretionary review by the Court of Appeals for the Armed Forces, staffed by civilians, and, extraordinarily, by the U.S. Supreme Court.

Military Commissions

However, military commissions can be created in extraordinary circumstances to try civilians or, more recently, noncitizens accused of terrorism. They were common during the U.S. Civil War (1861–1865), when parts of the United States were occupied by military forces, the danger of enemy raids made the military’s order-maintaining role important, and civilian legal institutions had difficulty functioning. Since then they had been little used before the George W. Bush administration attempted to employ them to try terrorist suspects. Congress retained them in the Uniform Code in case the military occupies some hostile nation whose own institutions of justice have failed. Although the Uniform Code does not specify trial procedures for military commissions, it gives the U.S. president the power to prescribe them, and it presumes that they will be similar to those of courts-martial. The U.S. Supreme Court has held that American citizens can sometimes be tried by such courts, the Bill of Rights notwithstanding, but only in wartime cases in which citizens have committed serious crimes that aided the enemy, and it is not clear whether its approval would extend to less serious cases.

After the Bush administration’s military commissions were blocked, Congress passed the Military Commissions Act of 2006 in order to try terrorist suspects outside the civilian court system. This proposal is similar to the use of international military tribunals, which have been conducted to try foreign nationals for war crimes (such as the Nuremburg Trials after World War II [1939–1945]). In the three years following the act, however, few defendants were tried, as opponents mounted a host of legal challenges, and the use of military commissions in this new role remained controversial.

Bibliography:

Everett, Robinson O. Military Justice in the Armed Forces of the United States. Westport, Conn.: Greenwood Press, 1976.
Fisher, Louis. Military Tribunals and Presidential Power: American Revolution to the War on Terrorism. Lawrence: University Press of Kansas, 2005.
S. Department of Defense. Manual for Courts-Martial. 2005 ed. www.au.af.mil/au/awc/awcgate/law/mcm.pdf.

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