Military tribunal

“ Congress alone can establish military or civil judicial tribunals. As Congress has not established military tribunals, except such as have been created under the articles of war, and which articles are made in pursuance of that clause in the Constitution which gives to Congress the power to make rules for the government of the army and navy, any other tribunal is and must be plainly unconstitutional, and all its acts void. ”

“ 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. ”

“ 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. ”

“ That is the best-known protection to any man with a defense worthy of being heard.
If these men are the first war leaders of a defeated nation to be prosecuted in the name of the law, they are also the first to be given a chance to plead for their lives in the name of the law. Realistically, the Charter of this Tribunal, which gives them a hearing, is also the source of their only hope. It may be that these men of troubled conscience, whose only wish is that the world forget them, do not regard a trial as a favor. ”

“ 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. ”

“ 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. ”

“ 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 Military Judge’s 29 June 2007 ruling similarly fails to address the Government argument that the Military Judge alone can make a determination whether the Military Commission has jurisdiction over the accused. In that ruling the Military Judge focuses his denial to hear evidence on the fact that he is not a “competent tribunal.” [27] As the Government Motion to Reconsider stated, the Military Judge need not act as a “competent tribunal” when ruling on a pre-trial jurisdictional challenge. ”

“ According to Article 10 of the Charter, every member of an organization can be brought to trial, if the organization has been declared criminal. The decision is left up to the Tribunal. The essential task of the Tribunal is the hearing of the members. Without this hearing a sentence is not possible. That is the basic condition without which the proceedings cannot be carried out. So far, the Defense has about 50,000 applications from the millions of members. ”

“ DÖNITZ: I was against handing over legal cases from the Navy to other courts. I said that, if one bears the responsibility for a branch of the Armed Forces, one also must have court-martial jurisdiction. That is what it says.
COL. POKROVSKY: And you are familiar with Rudolphi’s affidavit?
DÖNITZ: Yes, I know it.
COL. POKROVSKY: You remember that on the first page of that excerpt presented to the Tribunal it says:
“Early in the summer of 1943, the first threatening attempt to undermine the nonpolitical jurisdiction of the Armed Forces was made.” ”

“ 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 ”

“ 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. ”

“ Military tribunals have no such standing. For as this Court has said before: '* * * 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. The established principle of every free people is, that the law shall alone govern; and to it the military must always yield.' Dow v. Johnson, 100 U.S. 158, 169, 25 L.Ed. 632. Congress prior to the time of the enactment of the Organic Act had only once authorized the supplanting of the courts by military tribunals. ”

“ 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. ”

“ An express exception from Article III, § 2, and from the Fifth and Sixth Amendments, of trials of petty offenses and of criminal contempts has not been found necessary in order to preserve the traditional practice of trying those offenses without a jury. It is no more so in order to continue the practice of trying, before military tribunals without a jury, offenses committed by enemy belligerents against the law of war. ”

“ 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. ”

“ It can pronounce upon the decisions of all the tribunals of the judiciary, properly so called, but cannot take cognizance of any decision of administrative justice. The decisions of the military tribunals can be brought before it only by non-military persons appealing against the incompetence of the military jurisdiction in their case. ”

“ Nevertheless other considerations require a substantial degree of civilian deference to military tribunals. In reviewing military decisions, we must accommodate the demands of individual rights and the social order in a context which is far removed from those which we encounter in the ordinary run of civilian litigation, whether state or federal. ”

“ Persons guilty of criminal acts against the nationals of more than one of the Allied and Associated Powers will be brought before military tribunals composed of members of the military tribunals of the Powers concerned. ”

“ Article 106 Military tribunals may be established as special courts to exercise jurisdiction over military trials. 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. ”

“ It is evident, therefore, that by no loose and general construction of the law can citizens be held amenable to military tribunals, whose jurisdiction extends only to persons mustered into the military service, and such other classes of persons as are, by express provisions of law, made subject to the rules and articles of war. ”

“ The Commanding General established military tribunals to take the place of the courts. These were to try civilians charged with violating the laws of the United States and of the Territory, and rules, regulations, orders or policies of the Military Government. ”

“ 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. ”

“ In military habeas corpus cases, even more than in state hebeas corpus cases, it would be in disregard of the statutory scheme if the federal civil courts failed to take account of the prior proceedings-of the fair determinations of the military tribunals after all military remedies have been exhausted. ”

“ The courts may inquire whether the detention complained of is within the authority of those detaining the petitioner. If the military tribunals have lawful authority to hear, decide and condemn, their action is not subject to judicial review merely because they have made a wrong decision on disputed facts. Correction of their errors of decision is not for the courts but for the military authorities which are alone authorized to review their decisions. ”