Uniform Code of Military Justice

“ No person who has acted for the prosecution shall act subsequently in the same case for the defense, nor shall any person who has acted for the defense act subsequently in the same case for the prosecution. (b) Any person who is appointed as trial counsel or defense counsel in the case of a general court-martial- (1) shall be a judge advocate of the Army or the Air Force, or a law specialist of the Navy or Coast Guard, who is a graduate of an accredited law school or is a member of the bar of a Federal court or of the highest court of a State ”

“ During the period under review, the cases in which members of the armed forces were found to be involved in judicial proceedings show that the Mission's recommendations with respect to the necessary reforms of the current system of military justice, in particular article 546 of the Code of Criminal Procedure, are especially urgent. Establishing a special court to deal with crimes that are not specifically military constitutes a privilege incompatible with the rule of law, since all citizens accused of common crimes should be tried before the same courts. ”

“ One of the purposes of the Fifth Amendment by this exception was to preserve the separation of military law from the requirements of civil law. The regulation of the armed forces by Congress under cl. 14 of § 8, Art. I, was to be left for legislative judgment that discipline might be maintained by speedy trial and punishment in accordance with military law. The reasons, set out in our discussion of Article I power to regulate the armed forces, need not be repeated here. We ask ourselves, 'What law is the basis of this prosecution?' The answer is the Military Code. ”

“ It is impossible to hold that men who are by statute declared to be a part of the army, who may wear its uniform, whose names shall be borne upon its register, who may be assigned by their superior officers to specified duties by detail as other officers are, who are subject to the rules and articles of war, and may be tried, not by a jury, as other citizens are, but by a military court-martial, for any breach of those rules, and who may finally be dismissed on such trial from the service in disgrace, are still not in the military service. ”

“ It will be observed that of the three kinds of military jurisdiction which can be exercised or created under our Constitution there is but one that can prevail in time of peace, and that is the code of laws enacted by Congress for the government of the national forces. That body of military law has no application to the citizen, nor even to the citizen soldier enrolled in the militia in time of peace. ”

“ If the military courts do vindicate petitioner's claim, there will be no need for civilian judicial intervention. Needless friction will result if civilian courts throughout the land are obliged to review comparable decisions of military commanders in the first instance. Moreover, if we were to reach the merits of petitioner's claim for relief pending his military appeal, we would be obliged to interpret extremely technical provisions of the Uniform Code which have no analogs in civilian jurisprudence, and which have not even been fully explored by the Court of Military Appeals itself. ”

“ By the enactment of Article 2 (11) of the Code, Congress has provided that all shall be subject to the same system of justice and that the military commander who bears full responsibility for the care and safety of those civilians attached to his command shall also have authority to regulate their conduct.
It was conceded before this Court that Congress could have established, or might yet establish, a system of territorial or consular courts to try offenses committed by civilian dependents abroad. ”

“ Hence if a military commander, on the basis of his conception of military necessity, requires all civilians accused of crime to be tried summarily before martial law tribunals, the Bill of Rights must bow humbly to his judgment despite the unquestioned ability of the civil courts to exercise their criminal jurisdiction. ”

“ Article 2 (10) of the UCMJ, 50 U.S.C. § 552 (10) , provides that, in time of war, persons serving with or accompanying the armed forces in the field are subject to court-martial and military law. We believe that Art. 2 (10) sets forth the maximum historically recognized extent of military jurisdiction over civilians under the concept of "in the field." The Government does not attempt—and quite appropriately so—to support military jurisdiction over Mrs. Smith or Mrs. Covert under Art. 2 (10) .
62 . Even during time of war, the Constitution must be observed. ”

“ As further discussed below, each aspect of that seemingly broad jurisdiction was in fact supported by a separate military exigency. Generally, though, the need for military com­ [p. 591] missions during this period—as during the Mexican War—was driven largely by the then very limited jurisdiction of courts-martial: "The occasion for the military commission arises principally from the fact that the jurisdiction of the court-martial proper, in our law, is restricted by statute almost exclusively to members of the military force and to certain specific offences defined in a written code." ”

“ The New York State code says: "All able-bodied male citizens, between the ages of eighteen and forty-five, are subject to military duty," but also says that minors must obtain the written consent of parents or guardians to legalize an enlistment in a uniformed corps. Why such an incongruous distinction between uniformed corps and ununiformed militia? What right has the code to exact military service from a person who is condemned by the law as incompetent for citizenship, and is legally recognized by the law only as a child? ”

“ Article I lays down the condition which an armed force must fulfill in order to be accorded the rights of lawful belligerents, that it must be commanded by a person responsible for his subordinates.
“These provisions plainly imposed on petitioner, who at the time specified, was Military Governor of the Philippines, as well as commander of the Japanese forces, an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population. ”

“ Against the background of these significant powers for the Appointing Authority, which in certain respects at least conform to ordinary court-martial standards, the regulations governing the commissions at issue make several noteworthy departures. At a general court-martial—the only type authorized to impose penalties of more than one year's incarceration or to adjudicate offenses against the law of war, R. C. M. 201 (f) ; 10 U.S.C. §§818–820 (2000 ed. and Supp. III) —the presiding officer who rules on legal issues must be a military judge. ”

“ And as a further proof how rigidly the civil power requires the military to confine even the modified code martial to the military, and to what are strictly military matters, it cannot, without liability to a private suit in the judicial tribunals, be exercised on a soldier himself for a cause not military, or over which the officer had no right to order him ”

“ The superiors were protected because their orders were called acts of state. Under the Charter, no defense based on either of these doctrines can be entertained. Modern civilization puts unlimited weapons of destruction in the hands of men. It cannot tolerate so vast an area of legal irresponsibility.
Even the German Military Code provides that:
“If the execution of a military order in the course of duty violates the criminal law, then the superior officer giving the order will bear the sole responsibility therefor. ”

“ A brief examination will show, also, that they did not thus intend to put in force merely some modern military code, such as the Articles of War made by Congress, or those under the Mutiny Act in England. They do not mention either, and what is conclusive on this, neither would cover or protect them, in applying the provisions of those laws to a person situated like the plaintiff. For nothing is better settled than that military law applies only to the military; but 'martial law' is made here to apply to all. ”

“ In another one of those cases, a plurality of the Court cited Section 1-6 of Army Regulation 190-8 as an example of military regulations that would suffice to satisfy the due process requirements that the plurality indicated would apply to a U.S. citizen held as an enemy combatant in the United States. ”

“ No person or corporation shall have privileges nor enjoy emoluments which are not in compensation for public services and established by law. Military jurisdiction shall be recognized for the trial of criminal cases having direct connection with military discipline, but the military tribunals shall in no case and for no reason extend their jurisdiction over persons not belonging to the army. Whenever a civilian shall be implicated in any military crime or offense, the cause shall be heard by the corresponding civil authorities. ”

“ Reasons of a special nature may be deemed to exist why the rule should not be applied to military in the same way as it is to civil officers, but the legal applicability to both classes of officers is, it is conceived, the settled construction of the Constitution. It is no answer to this doctrine to say that officers of the army are subject to be deprived of their commissions by the decision of a court-martial. ”

“ In other words, Congress unequivocally provided that the accused’s status as an unlawful enemy combatant may be determined either as a matter of fact if he has Aengaged in hostilities or purposefully and materially supported hostilities,@ or if he has been determined to be such a person by a CSRT or Aother competent tribunal.@ The statutory word Aor@ makes sense only if the Military Judge has the ability to make a determination of jurisdiction based on a showing of fact by the prosecution, in the absence of a determination by the prior administrative tribunal ”

“ If an army marching through a friendly country would thus be exempt from its civil and criminal jurisdiction, a fortiori would an army invading an enemy's country be exempt. The fact that war is waged between two countries negatives the possibility of jurisdiction being exercised by the tribunals of the one country over persons engaged in the military service of the other for offences committed while in such service. ”

“ It has been held that this creates an exception to the normal method of trial in civilian courts as provided by the Constitution, and permits Congress to authorize military trial of members of the armed services without all the safeguards given an accused by Article III and the Bill of Rights. [36] But if the language of Clause 14 is given its natural meaning, [37] the power granted does not extend to civilians—even though they may be dependents living with servicemen on a military base. ”

“ Thus, in the MCA, Congress denominates for the purpose of establishing jurisdiction two categories of enemy combatants ­ lawful and unlawful. A military commission only has jurisdiction to try an unlawful enemy combatant. ”

“ Accordingly, the Eighth Amendment has no application here.
II. Federal Criminal Law A. Canons of Construction We discuss below several canons of construction that indicate that ordinary federal criminal statutes do not apply to the properly-authorized interrogation of enemy combatants by the United States Armed Forces during an armed conflict [12] These canons include the avoidance of constitutional difficulties, inapplicability of general criminal statutes to the conduct of the military during war, inapplicability of general statutes to the sovereign, and the specific governs the general. ”

“ It was decided that his right was established by Revised Statutes, § 1229 (Comp. St. § 2001) , providing that no officer in the military or naval service should in time of peace be dismissed from service, except in pursuance of a sentence of court-martial. ”

“ JODL: I have already said that if a soldier in full uniform only blows up or destroys an objective, I do not consider it an action contrary to international law; and for that reason I opposed the Commando Order in this form almost to the last moment...
MR. ROBERTS: I hear your answer and I will not pursue that matter. Then the document goes on—I do not want to read it all:
“The Chief of the Armed Forces Legal Department spoke to the effect that under these circumstances one should consider issuing an order fit for publication. ”

“ Congress was granted authority to regulate the armed forces in order to enforce obedience by members of the military establishment to military regulation during their service to the end that order may be ensured. Disobedience may occur in nationally critical times. What reason can there be for refusing courts-martial jurisdiction over crimes so committed by a serviceman merely because they passed undiscovered during the service period? ”