Military court

“ It is a matter well known that the march even of an army not hostile is often accompanied with acts of violence and pillage by straggling parties of soldiers, which the most rigid discipline is hardly able to prevent. The offences mentioned are those of most common occurrence, and the swift and summary justice of a military court was deemed necessary to restrain their commission.
But the section does not make the jurisdiction of the military tribunals exclusive of that of the State courts. ”

“ The court emphasized that 'the Court of Military Appeals has recently held that it possesses the power to issue a habeas corpus writ' if a serviceman could demonstrate that he was illegally restrained pending appeal, and it could perceive no justification for petitioner's failure to seek the military court's assistance. ”

“ 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. ”

“ 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. ”

“ He will appear at this point -- this is pretty much like a normal either federal court or military court arraignment. It's not the full military commission. Simply the presiding officer, the military judge will be there to read the charges against him, take his plea, confirm who his counsel are and then to set a motions schedule. ”

“ In large part, these ameliorations stem from the reaction of civilians, who were inducted during the two World Wars, to their experience with military justice. Notwithstanding the recent reforms, military trial does not give an accused the same protection which exists in the civil courts. Looming far above all other deficiencies of the military trial, of course, is the absence of trial by jury before an independent judge after an indictment by a grand jury. ”

“ No interference whatsoever is allowed with the conduct of justice. Law guarantees the independence of the Judiciary and states the guarantees and provisions relating to judges and the conditions of their irrevocability.
Article 164 [Court System, Military Courts] Law regulates the Courts of various kinds and degrees and specifies their functions and jurisdiction. Except when Martial Law is in force, Military Courts have jurisdiction only over military offences committed by members of the armed and security forces within the limits specified by law. ”

“ We fully agree with the presiding justice of the Circuit Court in the doctrine that the military should always be kept in subjection to the laws of the country to which it belongs, and that he is no friend to the Republic who advocates the contrary. ”

“ 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. ”

“ The members of the court fidgeted in their full-dress uniforms and smoked and chatted and strolled about, calling on old acquaintances, and the adjutant-general sent orderlies to and fro with inquiries.
And then came the sensation of the year among military circles in the old frontier department. The grave, dignified, soldierly chief of staff appeared at the court-room door with a telegraphic despatch in his twitching fingers. "Gentlemen," said he, "your services in this case will not be needed. The accused is beyond our jurisdiction." ”

“ And conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts. For instance, the Constitution does not provide life tenure for those performing judicial functions in military trials. ”

“ We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war. It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries, and were held in good faith for trial by military commission, charged with being enemies who, with the purpose of destroying war materials and utilities, entered or after entry remained in our territory without uniform-an offense against the law of war. ”

“ The important question thus presented for our determination is, whether an officer of the army of the United States is liable to a civil action in the local tribunals for injuries resulting from acts ordered by him in his military character, whilst in the service of the United States, in the enemy's country, upon an allegation of the injured party that the acts were not justified by the necessities of war. ”

“ Every offence which can be tried in a court must be tried there, and an offence which cannot be tried in a court, and is purely military, may be left to the army. An offence which is both an offence against the laws of war and a crime triable in court should go to the court, for the command of the constitution is express in this respect and the right of trial by the laws of war is, at best, only implied. Neither the law of nations nor the laws of war can be allowed to overcome, within our own territory, the express words of the constitution. ”

“ Petitioner, however, has made no effort to invoke the jurisdiction of the Court of Military Appeals. Nevertheless, he would have civilian courts intervene precipitately into military life without the guidance of the court to which Congress has confided primary responsibility for the supervision of military justice in this country and abroad. ”

“ The court, as the case satands, has jurisdiction, and must pronounce the judgment of the law. If the party sued deems proper for any reason to stay away or remain silent, he does so at the peril of having a judgment rendered against him which cannot be assailed collaterally.
Much is said of the evil of dragging military officers into the courts under such circumstances. But the military power can make such general orders as will protect itself against an abuse of the right which it has expressly recognized. ”

“ As a corollary to the preceding, it is a well-established rule of international law, that the surrendered party can be tried only on the allegations for which extradition has been accorded. This principle is also generally recognized among the states.
HOW A COURT MARTIAL IS CONDUCTED. A court martial is "a court consisting of military or naval officers, for the trial of offenses against military or naval laws."
Courts martial are of three classes, general, garrison, and regimental. General courts martial consists of from five to thirteen officers, appointed by a general or by the president. ”

“ 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. ”

“ 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. ”

“ Court-martial jurisdiction sprang from the belief that within the military ranks there is need for a prompt, ready-at-hand means of compelling obedience and order. But Army discipline will not be improved by court-martialing rather than trying by jury some civilian ex-soldier who has been wholly separated from the service for months, years or perhaps decades. Consequently considerations of discipline provide no excuse for new expansion of court-martial jurisdiction at the expense of the normal and constitutionally preferable system of trial by jury. ”

“ Under every system of military law for the government of either land or naval forces, the jurisdiction of courts-martial extends to the trial and punishment of acts of military or naval officers which tend to bring disgrace and reproach upon the service of which they are members, whether those acts are done in the performance of military duties, or in a civil position, or in a social relation, or in a private business. ”

“ 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. ”

“ But judges are not given the task of running the Army. The responsibility for setting up channels through which such grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters. ”

“ Thus we have lawfully constituted military tribunals, with jurisdiction over the person and subject-matter involved unquestioned and unquestionable, and action by them within the scope of the power with which they are invested by law. It is settled beyond controversy that under such conditions decisions by military tribunals, constituted by act of Congress, cannot be reviewed or set aside by civil courts in a mandamus proceeding or otherwise. ”

“ 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. ”

“ We agree with Colonel Winthrop, an expert on military jurisdiction, who declared: "a statute cannot be framed by which a civilian can lawfully be made amenable to the military jurisdiction in time of peace." [64] (Emphasis not supplied.)
As this Court stated in United States ex rel. Toth v. Quarles, 350 U.S. 11, the business of soldiers is to fight and prepare to fight wars, not to try civilians for their alleged crimes. ”

“ The Supreme Court shall have final appellate jurisdiction over the military tribunals. Military trials under an extraordinary state of martial law may be limited to original jurisdiction only in cases of crimes of soldiers and civilian employees of the armed forces, in cases of espionage on military affairs, and crimes as defined by law in regard to sentinels, sentry-posts, supplying of harmful food, and prisoners of war. ”

“ There is a military tribunal with judicial officers and there is a court-martial which consists of soldiers. These have the right to pass and to execute an appropriate sentence against any soldier of the German Army in court-martial proceedings. ”