Military judge

“ Further, when deemed necessary, the military judge, or the president of a special court-martial without a military judge, or the president of a special court-martial without a military judge, will satisfy himself that the accused is aware of any right to which he is entitled by inquiry of counsel or by explaining that right. ”

“ The military judge may require the defense to specify the grounds upon which the defense moves to suppress or object to evidence. If defense counsel, despite the exercise of due diligence, has been unable to interview adequately those persons involved in the search or seizure, the military judge may enter any order required by the interests of justice, including authorization for the defense to make a general motion to suppress or a general objection. ”

“ The MCA and MMC clearly provide the Military Judge the authority to hear evidence to decide a jurisdictional challenge and the Military Judge erred in failing to rely upon the authority that is exercised daily in courts throughout the United States. ”

“ 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. ”

“ After referral of charges, the inquiry may be ordered by the military judge; provided, however, that the convening authority may order such an inquiry after referral of charges but prior to commencement of the first session of the court-martial conducted pursuant to Article 39 (a) when a military judge is not reasonably available. The military judge may order a mental examination of the accused whenever he deems it appropriate notwithstanding any prior determination by the convening authority. ”

“ 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 ”

“ The Court of Criminal Appeals functions as the military's intermediate appeals court; it is established by the Judge Advocate General for each Armed Service and composed of appellate military judges. R. C. M. 1203; 10 U.S.C. §866. This is another means in which, by structure and tradition, the court-martial process is insulated from those who have an interest in the outcome of the proceedings.
Finally, in addition to these powers with respect to the presiding officer, the Appointing Authority has greater flexibility in appointing commission members. ”

“ Before imposing this sanction, the military judge must weigh the defendant's right to compulsory process against the countervailing public interests, including (1) the integrity of the adversary process; (2) the interest in the fair and efficient administration of military justice; and (3) the potential prejudice to the truth-determining function of the trial process.".
The Discussion following R.C.M. 910 (a) (1) is amended to read as follows:
"See paragraph 2, Part IV, concerning lesser included offenses. ”

“ 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. ”

“ But that language was removed and the present provision inserted: the action upon proper request shall be stayed unless in the opinion of the trial judge, 'the ability of * * * the defendant to conduct his defense' is affected by military service. The difference between ability to pay a judgment, and ability to conduct a defense is so great that the two clauses have substantially nothing in common. ”

“ 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. ”

“ We will attribute to Congress a purpose to guard jealously against the dilution of the liberties of the citizen that would result if the jurisdiction of military tribunals were enlarged at the expense of civil courts. General Enoch H. Crowder, Judge Advocate General, in testifying in favor of the forerunner of the present proviso of Article 92, spoke of the protection it extended the officer and soldier by securing them 'a trial by their peers.' [7] We think the proviso should be read generously to achieve that end. ”

“ In the army the administration of justice as pertaining to discipline is carried out in accordance with the provisions of military law, and it is the function of the judge-advocate-general to ensure that these disciplinary powers are exercised in strict conformity with that law. ”

“ The formation of military justice organs, their functioning, matters relating to the status of military judges, relations between military judges acting as military prosecutors, and the military command under which they serve, shall be regulated by law in accordance with the principles of the independence of courts and the security of tenure of judges. ”

“ 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. ”

“ But from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals.
'Moreover, there is a great difference between trial by jury and trial by selected members of the military forces. It is true that military personnel because of their training and experience may be especially competent to try soldiers for infractions of military rules. Such training is no doubt particularly important where an offense charged against a soldier is purely military, such as disobedience of an order, leaving post, etc. ”

“ 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. ”

“ Congress, in the exercise of its constitutional power to define and punish offenses against the law of nations, of which the law of war is a part, has recognized the 'military commission' appointed by military command, as it had previously existed in United States army practice, as an appropriate tribunal for the trial and punishment of offenses against the law of war. ”

“ 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. ”

“ We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army's primary fighting function. ”

“ Article 2 includes among those persons subject to the Articles of War the personnel of our own military establishment. But this, as Article 12 indicates, does not exclude from the class of persons subject to trial by military commissions 'any other person who by the law of war is subject to trial by military tribunals,' and who, under Article 12, may be tried by court martial, or under Article 15 by military commission. ”

“ 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. ”

“ 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. ”

“ 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 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." ”

“ The District Court, after separate trials found in each case, among other things, that the courts had always been able to function but for the military orders closing them, and that consequently there was no military necessity for the trial of petitioners by military tribunals rather than regular courts. ”

“ Reported cases, in great numbers and of high authority, support the proposition that a military officer, except when war is flagrant or when the courts are silenced by the exigencies of military rule or martial law, is subject to judicial process for the abuse of his authority or for wrongful acts done outside of his military jurisdiction. ”

“ In theory, any court may pass judgment on a military crime, but the military court system employs specialists in military law who are better able to understand the seriousness of crimes committed in relation to the military establishment. Military courts seldom surrender cases over which they have jurisdiction to civil courts.
There are two types of military courts: military tribunals and territorial military tribunals. The former are the lesser of the two and are established at major installations or are attached to large tactical units. ”

“ 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. ”

“ 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. ”

“ But the Court gives binding effect to the ruling of the military tribunal on the constitutional question, provided it has given fair consideration to it.
If the military agency has fairly and conscientiously applied the standards of due process formulated by this Court, I would agree that a rehash of the same facts by a federal court would not advance the cause of justice. ”