Military tribunal
Overview
 
A military tribunal is a kind of military
Military
A military is an organization authorized by its greater society to use lethal force, usually including use of weapons, in defending its country by combating actual or perceived threats. The military may have additional functions of use to its greater society, such as advancing a political agenda e.g...

 court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...

 designed to try
Trial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...

 members of enemy forces during war
War
War is a state of organized, armed, and often prolonged conflict carried on between states, nations, or other parties typified by extreme aggression, social disruption, and usually high mortality. War should be understood as an actual, intentional and widespread armed conflict between political...

time, operating outside the scope of conventional criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

 and civil
Private law
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...

 proceedings. The judges are military officers
Officer (armed forces)
An officer is a member of an armed force or uniformed service who holds a position of authority. Commissioned officers derive authority directly from a sovereign power and, as such, hold a commission charging them with the duties and responsibilities of a specific office or position...

 and fulfill the role of juror
Military jury
A United States military jury serves a function similar to an American civilian jury, but with several notable differences...

s. Military tribunals are distinct from courts-martial
Court-martial
A court-martial is a military court. A court-martial is empowered to determine the guilt of members of the armed forces subject to military law, and, if the defendant is found guilty, to decide upon punishment.Most militaries maintain a court-martial system to try cases in which a breach of...

.

A military tribunal is an inquisitorial system
Inquisitorial system
An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense...

 based on charges brought by military authorities, prosecuted by a military authority, judged by military officers, and sentenced
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...

 by military officers against a member of an adversarial force.

The United States has made use of military tribunals or commissions, rather than rely on a court-martial
Courts-martial in the United States
Courts-martial in the United States are criminal trials conducted by the U.S. military. Most commonly, courts-martial are convened to try members of the U.S. military for violations of the Uniform Code of Military Justice , which is the U.S. military's criminal code...

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

Most recently, as discussed below, the administration of George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....

 sought to use military tribunals to try "unlawful enemy combatants", mostly individuals captured abroad and held at a prison camp at a military base at Guantánamo Bay, Cuba.
A military tribunal or commission is most usually used to refer to a court that asserts jurisdiction over persons who are combatants of an enemy force, are held in military custody, and are accused of a violation of the laws of war
Laws of war
The law of war is a body of law concerning acceptable justifications to engage in war and the limits to acceptable wartime conduct...

.
Encyclopedia
A military tribunal is a kind of military
Military
A military is an organization authorized by its greater society to use lethal force, usually including use of weapons, in defending its country by combating actual or perceived threats. The military may have additional functions of use to its greater society, such as advancing a political agenda e.g...

 court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...

 designed to try
Trial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...

 members of enemy forces during war
War
War is a state of organized, armed, and often prolonged conflict carried on between states, nations, or other parties typified by extreme aggression, social disruption, and usually high mortality. War should be understood as an actual, intentional and widespread armed conflict between political...

time, operating outside the scope of conventional criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

 and civil
Private law
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...

 proceedings. The judges are military officers
Officer (armed forces)
An officer is a member of an armed force or uniformed service who holds a position of authority. Commissioned officers derive authority directly from a sovereign power and, as such, hold a commission charging them with the duties and responsibilities of a specific office or position...

 and fulfill the role of juror
Military jury
A United States military jury serves a function similar to an American civilian jury, but with several notable differences...

s. Military tribunals are distinct from courts-martial
Court-martial
A court-martial is a military court. A court-martial is empowered to determine the guilt of members of the armed forces subject to military law, and, if the defendant is found guilty, to decide upon punishment.Most militaries maintain a court-martial system to try cases in which a breach of...

.

A military tribunal is an inquisitorial system
Inquisitorial system
An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense...

 based on charges brought by military authorities, prosecuted by a military authority, judged by military officers, and sentenced
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...

 by military officers against a member of an adversarial force.

The United States has made use of military tribunals or commissions, rather than rely on a court-martial
Courts-martial in the United States
Courts-martial in the United States are criminal trials conducted by the U.S. military. Most commonly, courts-martial are convened to try members of the U.S. military for violations of the Uniform Code of Military Justice , which is the U.S. military's criminal code...

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

Most recently, as discussed below, the administration of George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....

 sought to use military tribunals to try "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 combatants of an enemy force, are held in military custody, and are accused of a violation of the laws of war
Laws of war
The law of war is a body of law concerning acceptable justifications to engage in war and the limits to acceptable wartime conduct...

. In contrast, 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 non-combatants who are alleged to have broken civil or criminal laws. However, military tribunals are sometimes used to try individuals not affiliated with a particular state's military who are nonetheless accused of being combatants and acting in violation of the laws of war.

History

General George Washington
George Washington
George Washington was the dominant military and political leader of the new United States of America from 1775 to 1799. He led the American victory over Great Britain in the American Revolutionary War as commander-in-chief of the Continental Army from 1775 to 1783, and presided over the writing of...

 used military tribunals during the American Revolution. Commissions were also used by General (and later President) Andrew Jackson
Andrew Jackson
Andrew Jackson was the seventh President of the United States . Based in frontier Tennessee, Jackson was a politician and army general who defeated the Creek Indians at the Battle of Horseshoe Bend , and the British at the Battle of New Orleans...

 during the War of 1812
War of 1812
The War of 1812 was a military conflict fought between the forces of the United States of America and those of the British Empire. The Americans declared war in 1812 for several reasons, including trade restrictions because of Britain's ongoing war with France, impressment of American merchant...

 to try a British spy; commissions, labeled "Councils of War," were also used in the Mexican-American War.

The Union used military tribunals during and in the immediate aftermath of the American Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...

. Military tribunals were used to try Native Americans
Native Americans in the United States
Native Americans in the United States are the indigenous peoples in North America within the boundaries of the present-day continental United States, parts of Alaska, and the island state of Hawaii. They are composed of numerous, distinct tribes, states, and ethnic groups, many of which survive as...

 who fought the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 during the Indian Wars
Indian Wars
American Indian Wars is the name used in the United States to describe a series of conflicts between American settlers or the federal government and the native peoples of North America before and after the American Revolutionary War. The wars resulted from the arrival of European colonizers who...

 which occurred during the Civil War; the thirty-eight people who were executed after the Dakota War of 1862
Dakota War of 1862
The Dakota War of 1862, also known as the Sioux Uprising, was an armed conflict between the United States and several bands of the eastern Sioux. It began on August 17, 1862, along the Minnesota River in southwest Minnesota...

 were sentenced by a military tribunal. The so-called Lincoln conspirators were also tried by military commission in the spring and summer of 1865. The most prominent civilians tried in this way were Democratic politicians Clement L. Vallandigham, Lambdin P. Milligan
Lambdin P. Milligan
Lambdin Purdy Milligan was a lawyer, farmer, and a leader of the Knights of the Golden Circle during the American Civil War. In 1864, he was unlawfully given a capital sentence, and later set free by the United States Supreme Court, setting a precedent later named after him: Ex parte Milligan...

, and Benjamin Gwinn Harris
Benjamin Gwinn Harris
Benjamin Gwinn Harris was a U.S. Representative from Maryland.Born near Leonardtown, St. Mary's County, Maryland, Harris attended Yale College and Cambridge Law School...

. 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 common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

, which governs criminal justice in the United States, and provides for trial by jury, the presumption of innocence, forbids secret evidence, and provides for public proceedings. Critics of the Civil War military tribunals charged that they had become a political weapon, for which the accused had no legal recourse
Legal recourse
A legal recourse is an action that can be taken by an individual or a corporation to attempt to remedy a legal difficulty.* A lawsuit if the issue is a matter of civil law* Many contracts require mediation or arbitration before a dispute can go to court...

 to the regularly constituted courts, and no recourse whatsoever except through an appeal to the President. The U. S. Supreme Court agreed, and unanimously ruled that military tribunals used to try civilians in any jurisdiction where the civil courts were functioning were unconstitutional, with its decision in Ex Parte Milligan
Ex parte Milligan
Ex parte Milligan, , was a United States Supreme Court case that ruled that the application of military tribunals to citizens when civilian courts are still operating is unconstitutional. It was also controversial because it was one of the first cases after the end of the American Civil...

, 71 U.S. 2
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...

 (1866).

Military commissions were also used in the Philippines in the aftermath of the Spanish-American War
Spanish-American War
The Spanish–American War was a conflict in 1898 between Spain and the United States, effectively the result of American intervention in the ongoing Cuban War of Independence...

; as these were used in an active war zone as an expedient of war, they did not fall afoul of Milligan.

President Franklin D. Roosevelt
Franklin D. Roosevelt
Franklin Delano Roosevelt , also known by his initials, FDR, was the 32nd President of the United States and a central figure in world events during the mid-20th century, leading the United States during a time of worldwide economic crisis and world war...

 ordered military tribunals for eight German
Nazi Germany
Nazi Germany , also known as the Third Reich , but officially called German Reich from 1933 to 1943 and Greater German Reich from 26 June 1943 onward, is the name commonly used to refer to the state of Germany from 1933 to 1945, when it was a totalitarian dictatorship ruled by...

 prisoners accused of planning sabotage in the United States as part of Operation Pastorius
Operation Pastorius
Operation Pastorius was a failed plan for sabotage via a series of attacks by Nazi German agents inside the United States. The operation was staged in June 1942 and was to be directed against strategic U.S. economic targets...

. Roosevelt's decision was challenged, but upheld, in Ex parte Quirin
Ex parte Quirin
Ex parte Quirin, , is a Supreme Court of the United States case that upheld the jurisdiction of a United States military tribunal over the trial of several Operation Pastorius German saboteurs in the United States...

. All eight of the accused were convicted and sentenced to death. Six were executed by electric chair
Electric chair
Execution by electrocution, usually performed using an electric chair, is an execution method originating in the United States in which the condemned person is strapped to a specially built wooden chair and electrocuted through electrodes placed on the body...

 at the District of Columbia jail on August 8, 1942. Two who had given evidence against the others had their sentences reduced by Roosevelt to prison terms. In 1948, they were released and deported to the American Zone of occupied Germany.

Trial by military commission of the Guantanamo detainees

The currently convened military commissions at the Guantanamo Bay detention camp are governed by the Military Commissions Act of 2009
Military Commissions Act of 2009
The United States House of Representatives passed a bill, known as the Military Commissions Act of 2009, which amended the Military Commissions Act of 2006.Formally, it is Title XVIII of the National Defense Authorization Act for Fiscal Year 2010 ....

.

See also

  • Military justice
  • Guantanamo military commission
    Guantanamo military commission
    The Guantanamo military commissions are military tribunals created by the Military Commissions Act of 2006 for prosecuting detainees held in the United States Guantanamo Bay detainment camps.- History :...

    s
  • List of resignations from the Guantanamo military commission
  • Combatant Status Review Tribunal
    Combatant Status Review Tribunal
    The Combatant Status Review Tribunals were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were established July 7, 2004 by order of U.S. Deputy Secretary of Defense...

  • Administrative Review Board
    Administrative Review Board
    The Administrative Review Board is a United States military body that conducts an annual review of the suspects held by the United States in Camp Delta in the United States Navy base at Guantanamo Bay, Cuba....


External links

The source of this article is wikipedia, the free encyclopedia.  The text of this article is licensed under the GFDL.
 
x
OK