Courts-martial

“ These cases decide that courts-martial have no jurisdiction to try those who are not members of the Armed Forces, no matter how intimate the connection between their offense and the concerns of military discipline. From these cases, the Government invites us to draw the conclusion that once it is established that the accused is a member of the Armed Forces, lack of relationship between the offense and identifiable military interests is irrelevant to the jurisdiction of a court-martial. ”

“ BÜHLER: I said that, and thus I objected, and wanted to object, to the shooting of hostages and to executions without court-martial proceedings.
MR. COUNSELLOR SMIRNOV: So you consider that a court consisting of high-ranking, police officials represents justice and is not a travesty of the very idea of justice?
BÜHLER: To which court do you refer? I pleaded for courts-martial.
MR. COUNSELLOR SMIRNOV: That is the very court I am talking about, the “Standgericht” or summary court-martial, composed of Gestapo officials centralized in the Government General, according to the decree of 2 October. ”

“ In the armies of the United States, the first is exercised by courts-martial, while cases which do not come within the 'rules and regulations of war,' or the jurisdiction conferred by statute or court-martial, are tried by military commissions. ”

“ Courts-martial are particularly guarded in adhering to the custom of resisting every attempt on the part of counsel to address them. A lawyer is not recognized by a court-martial, though his presence is tolerated, as a friend of the prisoner, to assist him by advice in preparing questions for witnesses, in taking notes and shaping his defense. The prisoner having closed his defense, the prosecutor is entitled to reply, when witnesses have been examined on the defense, or where new facts are opened in the address. ”

“ It is well settled that the 62d article of war does not vest, nor purport to vest, exclusive jurisdiction in courts-martial, and that civil courts have concurrent jurisdiction over all offenses committed by a military officer which may be punished by a court-martial under the provisions of that article. ”

“ Matter, in a military sense, especially with regard to courts-martial, consists of the specific charges which are brought against a prisoner, and to which the president and members most strictly confine themselves. It has been very properly observed, in a small pamphlet upon martial law, that unacquainted with the serious consequence of a strict attention to the minutiæ of form in criminal proceedings, general courts-martial have looked upon the first swearing in of the court, as a sufficient authority to warrant their proceeding on the trial of a variety of offences ”

“ Offences to the contrary shall be severely punished in the American army, and especially so if committed by officers.
§ 12. Whenever feasible, Martial Law is carried out, in cases of individual offences, by courts-martial, and sentences of death shall be executed only by the approval of the commander of the army corps, provided the urgency of the case does not require a speedier execution. In no case shall a sentence of death by court-martial be executed without the approval of a general officer. ”

“ But as regards the number of males committed by Ordinary Courts, the fall in the average population is much greater, for included in the daily average population shown below is an average probably not far below 2,000 prisoners committed by Courts Martial, the larger number of whom were cases of men, who, having failed to obtain from local tribunals exemption on the ground of conscientious objection under the Military Service Acts, were ultimately committed to prison for breach of military discipline. ”

“ The Acting Judge-Advocate-General reports that the number of trials by general courts-martial during the year was 2,328, and that 11,851 trials took place before garrison and regimental courts-martial. The suggestion that probably more than half the Army have been tried for offenses, great and small, in one year may well arrest attention. ”

“ But the proceedings of every court-martial must be reduced to writing and approved or disapproved by authorities "higher up." Sometimes those authorities higher up have some glimmering notion of law and justice, and it is in reliance upon that chance that lawyers chiefly depend in defending men before courts-martial. ”

“ The constitution says that no man may be tried and punished except by a jury and due process of law. If the courts are open, and opportunity given for jury trial and due process of law, the constitution must be obeyed, and it is absurd to say that martial law may exist. ”

“ Any person subject to military law who commits manslaughter, mayhem, arson, burglary, robbery, larceny, embezzlement, perjury, assault with intent to commit any felony, or assault with intent to do bodily harm, shall be punished as a court-martial may direct. ”

“ Art. 4. If, from the inquest mentioned in article two, facts are elicited which induce the officer holding it to believe that the prisoner was made to join the band by force, without having committed any other crime, or that he was found accidentally in it, without belonging to it, the said officer shall abstain from passing sentence, and he shall send the accused, with the respective act of inquest, to the proper court-martial, in order that the trial be proceeded with by the latter, in conformity with article one. ”

“ Choice between criminal court and court-martial.—When a criminal court and a court-martial have each jurisdiction in respect of an offence, it shall be in the discretion o£ the officer commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which court the proceedings shall be instituted, and, if that officer decides that they should be instituted before a court-martial, to direct that the accused person shall be detained in military custody. ”

“ Whatever role an ad hoc judicial approach may have in some areas of the law, the Congress and the military are at least entitled to know with some certainty the allowable scope of court-martial jurisdiction. ”

“ Whilst they have underrated the favourableness to their views, of a jury nominated by a crown-made sheriff, they may also have overrated that of a court-martial. If a court-martial even condemn a few of the most active of those taken in arms, it is quite certain that such a tribunal would be slow to imbrue its hands in blood to the extent demanded in the extracts we have given in this chapter70. ”

“ American exercise of court-martial jurisdiction prior to, and contemporaneous with, adoption of the Constitution lends no support to the Court's position. Military records between the endo f the War of Independence and the beginning of the War of 1812 show frequent instances of trials by court-martial, east of the frontier, for offenses against civilians and the civil laws, such as theft, assault, and killing livestock. ”

“ I at once entered a protest, calling attention to the extradition treaty, which enjoined my being tried by the ordinary civil law, not by any special tribunal. Whereupon the magistrate showed me a paper, in which the Minister of Justice informed him that after the conclusion of the examination he must act according to such and such a paragraph, which enacted that crimes committed by any person belonging to the army must be dealt with by a court-martial. ”

“ The question remains whether the board had the authority to modify the life sentence to 20 years after the murder conviction was set aside. Reviewing authorities have broad powers under military law. [5] Unlike a civilian trial in most jurisdictions, the initial sentence under military law is imposed by the members of the court-martial. Otherwise the court-martial performs functions more like those of a jury than a court. It is composed of laymen. See Art. 25 of the Uniform Code, 64 Stat. ”

“ Conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, the members of a court-martial, in the nature of things, do not and cannot have the independence of jurors drawn from the general public or of civilian judges. ”

“ The military judge, president of a special court-martial without a military judge, or summary court-martial must also personally advise the accused that his plea, if accepted, waives his right against self-incrimination, his right to a trial of the facts by a court-martial, and his right to be confronted by the witnesses against him. ”

“ This idea is inherent in the institution of trial by jury.'
A court-martial is tried, not by a jury of the defendant's peers which must decide unanimously, but by a panel of officers [2] empowered to act by a two-thirds vote. The presiding officer at a court-martial is not a judge whose objectivity and independence are protected by tenure and undiminishable salary and nurtured by the judicial tradition, but is a military law officer. [3] Substantially different rules of evidence and procedure apply in military trials. ”