Military Courts Essay

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Military courts are judicial bodies that are used to try members of the armed forces. These courts operate with a distinct set of rules and procedures from civilian courts. In the United States, there are two types of military courts. The first type, courts-martial, are used to try members of the armed forces for violations of the Uniform Code of Military Justice. A second type of military court, a military commission, is designed for the trial of enemy forces.

Courts-Martial in the United States

Congress’s authority to establish rules and regulations for the court-martial process stems from Article I, Section 8, of the U.S. Constitution; specifically, the Constitution grants Congress the power “to make rules for the government and regulation of the land and naval forces.” Pursuant to this, in

1950, Congress enacted the Uniform Code of Military Justice (UCMJ), which outlines the criminal laws and judicial rules governing all members of the U.S. Armed Services. Article 36 of the UCMJ charges the president with implementing its provisions. Prior to the implementation of the UCMJ, each branch of the military had a separate set of judicial rules for its members. The UCMJ can be modified both legislatively and by executive order.

The UCMJ outlines criminal offenses, many of which, such as murderer, manslaughter, and rape, are also illegal under civilian law. The code also criminalizes offensives that are not illegal under civilian law, for example, desertion, disrespect toward a superior commissioned officer, and failure to obey an order or regulation.

Notably, military courts are not subject to the same regulations governing other U.S. courts, as outlined in Article III of the U.S. Constitution. Despite this, the military justice system provides members of the armed forces subject to court-martial many of the same protections as defendants in civilian courts, including the presumption of innocence, the right to council, and freedom from self-incrimination.

Courts-martial also differ from civilian courts in that they function on an ad hoc basis; more precisely, they are not standing courts, but are instead tribunals that are designed to try a particular offense. A court-martial is set up by a convening authority, who is a commissioned office at a higher rank than the accused; the convening authority has a wide-ranging role in the proceedings, including responsibility for referring the matter to a court-martial, determining charges, and selecting the officers who will judge the accused. In addition, after the ruling in a court-martial, the convening authority may modify both the sentence and the findings of the court-martial.

The UCMJ outlines three separate types of courts-martial. Summary courts-martial are intended for minor misconduct changes, and are usually handled by a single commissioned officer, who gathers evidence and decides guilt and punishment. The second type, a special court martial, involves a military judge and a minimum of three officers to assess guilt. Sentences in a special court-martial are limited to a maximum of one-year confinement or a two-thirds reduction in pay, to last no longer than a month. In this type of court-martial, the defendant is entitled to counsel.

The final type, a general court-martial, functions as a felony court, designed to try serious offenses. This proceeding requires a military judge and a minimum of five commissioned officers. This court can impose harsh sentences, including discharge, long periods of confinement, and the death penalty. Prior to convening a general court-martial, the military must hold an Article 32 hearing, which functions as a preliminary hearing, to determine whether there is probable cause to try the individual.

Courts-Martial and Appellate Courts

Those convicted in a court-martial have the opportunity to appeal their sentences. Most basically, those convicted enjoy automatic review by the Court of Criminal Appeals (CAA); a CAA is established for each branch of the military. Following this, the individual can request review by the U.S. Court of Appeals for the Armed Forces (CAAF). Article III provisions govern this court, and appeals are decided by a panel of five civilian judges. Review is granted at the discretion of the CAAF; in 2012, the court rejected 76 percent of the requests for review.

In cases where the CAAF does grant review, the defendant can then appeal to the U.S. Supreme Court. Although an individual may not appeal to the Supreme Court if the CAAF has previously denied review, the U.S. government can appeal to the Supreme Court absent review by the CAAF. In cases where a court-martial results in a death sentence, the defendant can directly petition the Supreme Court for review.

Critics of this appellate process, including the American Bar Association, point out that members of the armed services do not enjoy the right to appeal to the Supreme Court, a right granted to defendants in civilian courts, as well as enemy combatants convicted in military commissions. Since 2005, members of Congress have made several attempts to pass legislation harmonizing the military and civilian appeals systems. The proposed Equal Justice for Our Military Act would give service members who are denied review by the CAAF the right to appeal for review by the Supreme Court. The 2013 version of the bill, sponsored by California representative Susan Davis, is currently in committee.

Controversial Courts-Martial

Although most courts-martial are obscure affairs concerning minor infractions of military law, a few have engendered public controversy. Arguably the most controversial court-marital in recent history was the 1970 trial of Lieutenant William Calley, stemming from the My Lai Massacre during the Vietnam War. Calley was accused of more than 100 counts of premeditated murder after an incident in 1968, when his platoon killed more than 300 unarmed citizens.

His 1970 trial was the longest court-martial in U.S. history. It took the six-member jury 13 days to deliver a guilty verdict, sentencing Calley to a life of hard labor. After the verdict, however, the Nixon administration faced strong public and Congressional pressure to pardon Calley; some argued that Calley’s actions were justified, while others asserted that however horrible his crimes, he was being made a scapegoat. Subsequently, Richard Nixon ordered his transfer from military prison to house arrest. The convening authority then reduced Calley’s sentence to 20 years; an appeals court upheld this decision. Another successful clemency appeal further reduced his sentence to 10 years. Calley was eventually released after serving just three and half years.

Another controversial case occurred in 1999, when Major General David Hale, commander of NATO forces in southern Europe, was court-martialed on charges that he had engaged in adultery with the wives of four subordinates after blackmailing the women. In 1998, in the midst of the investigation into the misconduct, the army allowed Hale to retire with honor. This prompted an outcry from members of Congress, led by Maine senator Olympia J. Snowe and New York representative Carolyn B. Maloney; they argued that the army was relaxing the rules for a high-ranking officer, while strictly enforcing them in instances when lower-ranking individuals were accused of sexual misconduct.

In response, Secretary of Defense William Cohen revised the policy, prohibiting an officer from retiring until all outstanding changes were resolved; he also ordered the Pentagon to begin an investigation into the allegations. Hale was court-martialed in March 1999; he became only the second general to face court-marital under the UCMJ. Although his charges carried the possibility of prison time and dismissal from the army, after pleading guilty to seven charges of sexual misconduct he was fined and demoted to the rank of one-star brigadier general.

Military Tribunals and U.S. Law

Military commissions are also governed by international law, specifically the 1949 Geneva Conventions; the conventions prescribed rules for humane conduct in wartime, including the proper treatment of enemy soldiers. Specifically, Article 3 of the conventions holds that signatories are prohibited from “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

Military commissions were first used by the United States in 1847 to try enemy soldiers and were used heavily in subsequent wars, including the Civil War and World War I. One of the most famous cases concerned the trial of Nazi saboteurs in 1942. Here, eight German citizens, who had received sabotage training in Berlin, traveled to the United States carrying explosives. All eight men were captured in the United States; President Franklin Roosevelt rejected trying the Germans in federal court and instead issued a military order stating that they were to be tried by a secret military commission. In the subsequent trial, all eight were convicted and sentenced to death, although two had their sentenced commuted. The defendants appealed the decision to the U.S. Supreme Court, arguing that the commission violated the Fifth and Sixth Amendments.

In the case Ex Parte Quirin, the court unanimously upheld the constitutionality of the tribunal, holding that the order was within the president’s authority as commander in chief. In addition, the court held that the defendants were not properly considered prisoners of war (POWs), who were captured in uniform. Instead they were correctly classified as unlawful enemy combatants, who had broken the laws of war; as such, they were not entitled to trial in civilian courts.

Military Commissions and the War on Terror

After World War II, military commissions fell out of use. They were revived again in November 2001, when President George W. Bush issued a military order establishing commissions to try terror suspects captured during the invasion of Afghanistan and detained at the Guantanamo Bay Naval Base in Cuba. In establishing the commissions, the administration labeled the suspects as “enemy combatants”; Bush argued that since al Qaeda was a nonstate actor, not party to the Geneva Conventions, the detainees did not enjoy their protections.

This policy was subject to several legal challenges, which ultimately circumscribed the president’s ability to use the military commissions. First, in 2003, the Supreme Court under Chief Justice William Rehnquist considered Rasul v. Bush, and established that U.S. courts do have jurisdiction to consider legal appeals from both U.S. and foreign citizens being held at Guantanamo Bay Naval Base.

In this case, four foreign detainees were denied writs of habeas corpus on the grounds that federal courts had no jurisdiction because they were being held in a territory where the United States did not have sovereignty. The court disagreed, stating that “the U.S. exercised complete jurisdiction and control over the base.” The case was notable in that the Supreme Court established that the right to petition for habeas corpus was not dependent on citizenship.

In the same year, the Supreme Court ruled on a similar case, Hamdi v. Rumsfeld; here, Yaser Hamdi, a U.S. citizen, was arrested and declared an enemy combatant after being accused of fighting for the Taliban in Afghanistan. Once again a writ of certiorari, filed on Hamdi’s behalf, was denied, and Hamdi argued that his Fifth Amendment right to due process was violated because he was not given access to a lawyer and was denied an appearance in court. The Supreme Court agreed, and ruled that although the government was permitted to detain Hamdi, U.S. citizens held as enemy combatants still had the right to an appeal in court.

In 2005, a third case regarding the military tribunals was brought to the Supreme Court. In Hamdan v. Rumsfeld, the court addressed the issue of whether Salim Ahmed Hamdan, an al Qaeda member captured in Afghanistan, had the right to a writ of habeas corpus prior to being identified as an enemy combatant during a military tribunal hearing. Here, the Supreme Court reinforced that the commission, set up to try Hamdan and other detainees, had to adhere to the strictures of both the Geneva Conventions and the UCMJ. Notably, the court held that pursuant to the UCMJ, it was necessary for Congress to expressly authorize the use of military tribunals; commissions established by presidential order alone were invalid.

Cumulatively, these decisions made clear that the current system of military tribunals ran afoul of both international law and the U.S. Constitution. In the wake of these decisions, Congress passed the Military Commissions Act (MCA) of 2006; the MCA represented a legislative response to Hamdan, intended to set up military commissions that were consistent with domestic and international law.

More precisely, the MCA gave the secretary of defense authority to establish military commissions, organized as criminal courts run by the U.S. Armed Services, to try civilian detainees who are not U.S. citizens and have been labeled enemy combatants. The MCA also stripped unlawful enemy combatants of their right to file for habeas corpus and to challenge their detainment in a federal court.

In 2008, however, provisions of the Military Commissions Act were challenged in the case Boumediene v. Bush. In a five to four ruling, the Supreme Court declared unconstitutional a provision of the MCA, which prevented U.S. federal courts from considering habeas corpus petitions from detainees.

Upon taking office in January 2009, Bush’s successor, Barack Obama suspended the use of military commissions; Obama had made a campaign pledge to close the Guantanamo Bay detention facility. Several months later, however, the administration indicated that it would resume the use of military commissions. In accordance with this, Congress passed the 2009 Military Commissions Act, as part of the 2010 National Defense Authorization Act.

The new version of the MCA replaced the term enemy combatant with “unprivileged enemy belligerent.” Although the new act retained many aspects of the Bush-era tribunals, it did bar the use of confessions obtained by coercion; it also allowed detainees greater access to defense resources, including witnesses and evidence. In addition, in capital cases a detainee was now entitled to representation by two lawyers with experience in capital cases.


Although military courts are not subject to the same constitutional rules and regulations as civilian courts, defendants in these judicial bodies still enjoy some constitutional protections. In the case of modern courts-martial, members of the armed services accused of violations of the UCMJ retain many of the protections enshrined in the Bill of Rights. Despite this, questions remain regarding the fairness of the appellate process, which prevents most individuals convicted by courts-martial from petitioning a civilian court for review.

The proper scope of constitutional protections for defendants in military tribunals has proven to be a more complex question, one that has been debated extensively since the beginning of the War on Terror. At the outset of this conflict, the Bush administration established judicial bodies that limited the rights of defendants on the grounds that members of the Taliban and al Qaeda were enemy combatants, rather then prisoners of wars. A series of Supreme Court decisions, however, established the right of the detainees to challenge their detention in federal court. Bush’s successor, Barack Obama, again modified the rules and procedures of the tribunals in an attempt to reconcile the rights of detainees with national security imperatives. This ongoing process suggests that successive administrations will continue to grapple with legal complexities surrounding military courts.


  1. Elsea, Jennifer K. “The Military Commissions Act of 2009: Overview and Legal Issues.” Congressional Research Service. (Accessed May 2013).
  2. Fisher, Louis. Military Tribunals & Presidential Power: American Revolution to the War on Terrorism. Lawrence: University Press of Kansas,
  3. Oyez Project at IIT Chicago-Kent College of Law. “Ex parte Quirin.” (Accessed May 2013).
  4. Oyez Project at IIT Chicago-Kent College of Law. “A Multimedia Archive of the Supreme Court of the United States.” (Accessed May 2013).
  5. Pollack May and Estela I. Velez. “Military CourtsMartial: An Overview.” Congressional Research Service. (Accessed May 2013).
  6. Pound, Edward T. “Unequal Justice: Military Courts Are Stacked to Convict—But Not the Brass. The Pentagon Insists Everything’s Just Fine.” US News and World Report. (Accessed May 2013).

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