Military commissions and courts-martial: a brief discussion of the constitutional and jurisdictional distinctions between the two courts

Army Lawyer, March, 2002 by Timothy C. MacDonnell

On 13 November 2001, President George W. Bush signed Military Order 222, authorizing the trial of non-U.S. citizens for war crimes by military commission. (1) Since the signing of that order, a contentious debate has raged over the possible use of military commissions to try suspected terrorists. As part of that debate, the media has used various terms to describe the proposed military commissions. They have called them "Secret Military Trials," (2) "Military Tribunals," (3) and "U.S. Military Court[s]." (4) A Cable News Network internet story described military commissions as "essentially a courts-martial, or a military trial, during a time of war." (5) This quotation illustrates the underlying misperception that military commissions and courts-martial are the same. (6) They are not.

In fact, substantial differences exist between military commissions and courts-martial. Although both courts have existed since the beginning of the United States, they have existed for different purposes, based on different sources of constitutional authority, and with different jurisdictional boundaries. These differences can affect who may order a trial, who may be tried, what types of cases the court can hear, and the pretrial, trial, and appellate procedures applied in a particular case.

This article examines two of the major distinctions between military commissions and courts-martial: the constitutional authority to create each court and their respective jurisdictional limitations. Due to the complicated constitutional and jurisdictional issues presented by military commissions, as compared to the relatively straightforward courts-martial, this article is devoted primarily to discussing this generally misunderstood court.

Section I: Constitutional Authority for Courts-Martial and Military Commissions

Most illustrative of the distinction between military commissions and courts-martial is the constitutional authority for the creation of these two courts. The Supreme Court has held, "Congress and the President, like the courts, possess no power not derived from the Constitution." (7) Thus, no branch of the government may convene a court without some source of authority from the Constitution. This section identifies and contrasts the constitutional authority for the creation of military commissions and courts-martial, and discusses the significance of these differences.

Courts-Martial

The Constitution vests Congress with the authority to create courts-martial and establish rules for their operation. This power is derived from Article I, section 8, clause 14 of the Constitution, which states: "The Congress shall have Power ... To make Rules for the Government and Regulation of the land and naval Forces." (8) Congress first exercised its authority under Article I, section 8, in 1789, when it expressly recognized the then existing Articles of War and made them applicable to the Army. (9) In 1950, Congress dramatically revised the Articles of War, creating the Uniform Code of Military Justice (UCMJ). (10) Through the UCMJ, Congress established courts; (11) defined their jurisdiction; (12) identified crimes; (13) delegated authority to create pre-trial, trial, and post-trial procedures; (14) and created an appellate system. (15)

Military Commissions

Although the constitutional authority for courts-martial is easy to identify, the power to establish military commissions is not. Military commissions are a recognized method of trying those who violate the law of war, (16) but the power to create them lies at a constitutional crossroad. Both Congress and the President have authority in this area. (17) Congress's authority lies in Article I, section 8, clauses 1, 10, 11, 14, and 18. (18) Particularly given Congress's authority "to define and punish Piracies and Felonies committed on the high seas, and Offense against the Law of Nations," (19) there is little question that Congress could, under appropriate circumstances, establish a military commission.

Presidential Authority

The more controversial question concerns the President's authority to establish military commissions based upon his Article II powers. The President's authority regarding commissions is derived from Article II, section 2, clause 1, of the Constitution, which states, "The President shall be Commander in Chief of the Army and Navy of the United States." (20) The President's power to appoint a military commission without an express grant of that authority from Congress is inherent to his role as the Commander in Chief of the armed forces. This argument has support from the UCMJ, international law, and Supreme Court precedent.

Statutory Authority

While the UCMJ discusses military commissions, (21) it does not specifically grant the President the authority to create military commissions. (22) Instead, Articles 18 and 21, when taken together, recognize the jurisdiction of military commissions to try violations of the law of war, and articulate Congress's intent that the UCMJ not preempt that jurisdiction. Article 18 grants courts-martial the authority to try anyone suspected of committing war crimes, including civilians. It states: "[g]eneral courts-martial ... have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war." (23) Article 21 expresses Congress's intent not to interfere with the existing jurisdiction of military commissions over war crimes: