DOCSLIB.ORG

Revision of the Articles of War, 1912-1920, Volume 2

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Revision of the Articles of War, 1912-1920, Volume 2 Volume 2 REVISION OF THE ARTICLES OF WAR 1912-1920 (1n two volumes) Hearing. Subcommittee of Committee on Military Affalr. s. Senate 66th Congress, 1st sess. on S.64. A bill to establish military justice. 1919 House Report 940 - 66th Congress, 2d sess. Hearing. Special subcommittee of Committee , on Military Affairs. House. 66th Congress, 2d sess. Play 4, 1920 The Articles of War. Approved June 4, 1920 HEARINGS I:IiIWR13 TIIE tF SUBCOMMITTEE OF THE COMMITTEE ON MILIFARY AFFAIRS UNITED STATES SENATE SIXTY-SIXTH CONGRESS FIRST SESSION ON A 1311.1, TO ESTABLISH MILITARY JUSTICE PART 1 -. - 1'1-il~tetlfor tl~euse of the Co~ninitteeon Military Affairs 1 WARHISGTON GOVERKJIENT PRINTIXG OFFIC~ 1910 ESTABLISHMEN T OF MILITARY JUSTICE - ___-.- HEARINGS l!l:l'ORB: THE SUBCOMMITTEE OF THE COMMITTEE ON MILITARY AFFAIRS UNITED STATES SENATB SIXTY-SIXTH CONGRESS FIRST SESSION ON S. 64 A HILL TO ESTABLISH MILITARY JUSTICE PART 2 I'ril~ted for the use of the Committee on Military Affairs WASH1SGTO;"i GOVERNMENT PRINTING OFFICE 1919 ESTABLTSHNEbT OF MTLTTARY JUSTICE-PROPOSED ANEhbhlF,I\'l' OF THE ARTICLES OF WAR. SATURDAY, AUGUST 30, 1919. The subcommittee niet, pursuant to acljo~~rnment,in the room of the Committee on Appropriations in the Capitol, at 10 o'cloclr a. m., Senator Irvine L. Lenroot presiding. Present : Senators Lenroot (acting chairman) and Chamberlain. STATEMENT OF MR. SAMUEL T. ANSELL--Resumed. Senator LENROOT.I do not remember just what point you hat1 reached at the last session, General, do you? Mr. ANSELL.If the committee please, yesterday I had said that Great Britain had recognized the necessity of at least a partial civil control, in the last analysis, over courts-martial. I had shown that their law requires a law officer with the powers of a judge to sit with each general court-martial, though, as I said-ancl ought to have said, in fairness-those powers, like so many things British, were not well defined and fixecl. Probably, cle jure they are advisory; de facto, they are controlling. That with each field general court-martial, which is their agency for enforcing discipline when they are in actual campaign, so far as enlisted men are concerned, as a rule, the law does not require this judge to sit with the court-martial ; but by regulations it is required. and it has worked out to the absolute satisfaction of all, the only complaint being it should go farther and be fixecl bg statute. I had shown that the head of the Judge Advocate General's De- partment, who is the chief of the bureau of military justice there, i~ a civilian, had at one time been a inember of the Government, still has a close relationship both to Crown and Parliament, and, most significant of all, he is not subject to any military supervision what- RVPP- I had also adverted to the fact, previously, that there was far greater opportunity there for the civil coul-ts of the Kingdom to review the judgments of courts-martial than here, the sole remedy here being by way of the writ of habeas corpus; except, of course, in a suit for trespass, which, as you know, seldom or never is re- 132265-1%--PT 2-15 273 ESTABLISHMENT OF MILITARY JUSTICE. 275 sorted to, for the very obvions reason, I suppose, that you had to tionship-the disciplinary relationship-betmeen the officers and men prove that a meinber of the court has maliciously and flagrantly really might be improved upoil. violated his duty in order to clo injury to the accused. Certainly The French lake the discipline of their men much to heart. Justice that would have to be proved before clamage could be recovered. to the enlisted man is very much on their conscience, and the first Such actions are not brought here. thing that a colonel of a rcgiinerit does n hen he comes to his orderly In France it is significant likewise that, military as that people is, room in the morning is to look over the delinquency book and to go the judge advocate general of the army there is a civilian, and a most into it with the g!cntest of care. A man may not be court-martialed distinguished one. In my travels there I met no lawyer ~vhoim- there until a quasl-judicial officer does loclk over the charges, and does pressed me more than he. look over the evidence to see uhetller there is a prima facie case; Senator CIIAB~~ERLAIN.What is his title ? and such oficer is not under the control of military authority either. Mr. ANSELL.Unclersccretary of State for Military Justice, with a And after a mail is tried, as I have inclicatecl, he gets this review. It scat in Parliament. should be concedecl that French courts-martial, like French civil In the French Ariny in time of peace there is a very large appel- courts, clo not adhcre to the teclznical rules of evidence, for instance, late systcm. Many of their cases can go to the supreme court of and other rules of procedcre, as we do. Ihnce, the Court of Cassation, of Paris; and in time of peace there In Italy there is established the system of appeals, it seems to me, is a court of military apl~eals.as well; and in time of war the law on a much more elaborate scale than in any other country. It seemed pro\ ides for a cc urt of appeali with each army, but, as I unclerstood to me too elalsorate, indeed. their practice, perhaps a court of appeals was not maintained at the I discoyered in Paris a bcok which I regarded as very valuable. It lzeaclquarters of each army, but rather, administratively, at some cen- was a rcp0r.t made bv a Norwegian jnclge advocate, sent by his Gov- tral point, as at Paris, where it could take care of more than one c~nmentto inyestigate the systeiiis of military justice obtaining in all jurisdiction. the European countries; and later he extended that to our own coun- Senator LEXROOT.But is maintained? trv and some of the South American countries. It is the only- compre-- Mr. AXSELL.But is maintained. That is the point. My recollec- hksive study, so far as I know, that has ever been made of such a tion of it is that in time of war they may have, ancl do have usually, thing. It is old, lzovever. But after I got back home I found there on their court of military appeals men who are commissioned in the was one copy of that book in this count~.y,and I got it from Harvard army; that is, armv men. Of course there the distinction between Unirersity. I hare let another officer have it temporarily, and have the professional soldier and the citizen soldier is not so marlcecl as it is not been able to get it back, but I wanted to assure the committee that here. If there is one thing more impressive about the French Army I have read the report of that officer, and that report reveals clearly than another, it is the unity observable in their military establish-' that this system of military appeals is established throughout Europe, meat, a unity which we do not have here, but which I hope that me and that the system of having a specially qunlified law officer sitting may some day have. with each general court-martial is e~tablishedthroughol~t Europe. Senator LEXROOT.YOU mean it is more democratic throughout? That oficer comments on the fact that Spain, Prussia, Russia, Eng- Mr. ANSELL.Yes. Senator, I went to France, of course, with the land, and the United States are the ones who do not have it. There, ntmnst svmpathy and admiration for the French people, but not so I believe. is some sort of review in Prussia-was at that tin!e- much with the idea that the French were really a democratic people. that I am not familiar with at all. But even in Spain there is a Whatever may be said for any other institution, that institution more thorough review by the judge advocate general than there which is usually in all nations least democratic was in the case of is here; and most especially does he comment on the fact that the the French most democratic; that is, their army. I said in my re- British system and the American system make no provision for an port, and I repeat, that whenever we shall change, let us not change pnthoritatire review whatever. So that this talk about a reviewing toward the British or what might be called the northern nations' body being a new thing, detrin:ental to discipline, is disproved by view of maintaining discipline, because I think probably this system the fact that it is an establishecl institution in Europe, where armies, whereby discipline is maintained by the great gulf between enlisted of course, are far more eignificmt things in government and closer man and officer by erecting the officer as a sacresanct thing far above to the people than they are here. him belongs rather to the northern races-to ourselves, to the Britieh, Senator CI-IA~~RLAIS.May I ask you if, in your risit to France, and to others. Let us, if we can, incline to the French system, where, yon conipared the maximum penalties imposed in the French arnlp without loss of dignity and without any infringement of proper pre- with the inaxiinum penalties imposed in the American Army? rogative.;, the rclationship between officer and enlisted man is a re- Mr.-~ ~ ANSELL.Yes, Senator; ancl the French punishments are com- 1narli.able one, a most helpful one, and causes, I think, a Frenchman paratively very light, indeed.
Load more

Recommended publications
  • Moves to Amend HF No. 752 As Follows:​ Delete Everything After the Enacting Clause and Insert
    03/23/21 02:45 pm ​ HOUSE RESEARCH JD/RK H0752DE3​ 1.1 .................... moves to amend H.F. No. 752 as follows:​ 1.2 Delete everything after the enacting clause and insert:​ 1.3 "ARTICLE 1​ 1.4 APPROPRIATIONS​ 1.5 Section 1. STATE GOVERNMENT APPROPRIATIONS.​ 1.6 The sums shown in the columns marked "Appropriations" are appropriated to the agencies​ 1.7 and for the purposes specified in this article. The appropriations are from the general fund,​ 1.8 or another named fund, and are available for the fiscal years indicated for each purpose.​ 1.9 The figures "2022" and "2023" used in this article mean that the appropriations listed under​ 1.10 them are available for the fiscal year ending June 30, 2022, or June 30, 2023, respectively.​ 1.11 "The first year" is fiscal year 2022. "The second year" is fiscal year 2023. "The biennium"​ 1.12 is fiscal years 2022 and 2023.​ 1.13 APPROPRIATIONS​ 1.14 Available for the Year​ 1.15 Ending June 30​ 1.16 2022​ 2023​ 1.17 Sec. 2. MILITARY AFFAIRS​ 1.18 Subdivision 1. Total Appropriation​ $​ 24,393,000​ $​ 24,589,000​ 1.19 The amounts that may be spent for each​ 1.20 purpose are specified in the following​ 1.21 subdivisions.​ Article 1 Sec. 2.​ 1​ 03/23/21 02:45 pm ​ HOUSE RESEARCH JD/RK H0752DE3​ 2.1 Subd. 2. Maintenance of Training Facilities​ 9,772,000​ 9,772,000​ 2.2 Subd. 3. General Support​ 3,507,000​ 3,633,000​ 2.3 Subd. 4. Enlistment Incentives​ 11,114,000​ 11,114,000​ 2.4 The appropriations in this subdivision are​ 2.5 available until June 30, 2025, except that any​ 2.6 unspent amounts allocated to a program​ 2.7 otherwise supported by this appropriation are​ 2.8 canceled to the general fund upon receipt of​ 2.9 federal funds in the same amount to support​ 2.10 administration of that program.​ 2.11 If the amount for fiscal year 2022 is​ 2.12 insufficient, the amount for 2023 is available​ 2.13 in fiscal year 2022.
    [Show full text]
  • Constitutional Law—Uniform Code of Military Justice—General Article Void for Vagueness?
    Nebraska Law Review Volume 34 Issue 3 Article 8 1955 Constitutional Law—Uniform Code of Military Justice—General Article Void for Vagueness? James W. Hewitt University of Nebraska College of Law Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation James W. Hewitt, Constitutional Law—Uniform Code of Military Justice—General Article Void for Vagueness?, 34 Neb. L. Rev. 518 (1954) Available at: https://digitalcommons.unl.edu/nlr/vol34/iss3/8 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. 518 NEBRASKA LAW REVIEW CONSTITUTIONAL LAW-UNIFORM CODE OF MILITARY JUSTICE-GENERAL ARTICLE VOID FOR VAGUENESS.? Much has been said or written about the rights of servicemen under the new Uniform Code of Military Justice,1 which is the source of American written military law. Some of the major criticisms of military law have been that it is too harsh, too vague, and too careless of the right to due process of law. A large por­ tion of this criticism has been leveled at Article 134,2 the general, catch-all article of the Code. Article 134 provides: 3~ Alabama. Connecticut, Delaware, Florida, Georgia, Illinois, Louisiana, l\Iaine, l\Iaryland, l\Iasschusetts, New Hampshire, New Jersey, Tennessee, Texas, Virginia, and Vermont. South Carolina has the privilege by case decision. See note 4 supra. 1 64 Stat. 107 <1950l, 50 U.S.C. §§ 551-736 (1952).
    [Show full text]
  • Gentlemen Under Fire: the U.S. Military and Conduct Unbecoming
    Minnesota Journal of Law & Inequality Volume 26 Issue 1 Article 1 June 2008 Gentlemen under Fire: The U.S. Military and Conduct Unbecoming Elizabeth L. Hillman Follow this and additional works at: https://lawandinequality.org/ Recommended Citation Elizabeth L. Hillman, Gentlemen under Fire: The U.S. Military and Conduct Unbecoming, 26(1) LAW & INEQ. 1 (2008). Available at: https://scholarship.law.umn.edu/lawineq/vol26/iss1/1 Minnesota Journal of Law & Inequality is published by the University of Minnesota Libraries Publishing. Gentlemen Under Fire: The U.S. Military and "Conduct Unbecoming" Elizabeth L. Hillmant Introduction ..................................................................................1 I. Creating an Officer Class ..................................................10 A. "A Scandalous and Infamous" Manner ...................... 11 B. The "Military Art" and American Gentility .............. 12 C. Continental Army Prosecutions .................................15 II. Building a Profession .........................................................17 A. Colonel Winthrop's Definition ...................................18 B. "A Stable Fraternity" ................................................. 19 C. Old Army Prosecutions ..............................................25 III. Defending a Standing Army ..............................................27 A. "As a Court-Martial May Direct". ............................. 27 B. Democratization and its Discontents ........................ 33 C. Cold War Prosecutions ..............................................36
    [Show full text]
  • Ex Parte Quirin", the Nazi Saboteur Case Andrew Kent
    Vanderbilt Law Review Volume 66 | Issue 1 Article 3 1-2013 Judicial Review for Enemy Fighters: The ourC t's Fateful Turn in "Ex parte Quirin", the Nazi Saboteur Case Andrew Kent Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the International Law Commons Recommended Citation Andrew Kent, Judicial Review for Enemy Fighters: The ourC t's Fateful Turn in "Ex parte Quirin", the Nazi Saboteur Case, 66 Vanderbilt Law Review 150 (2019) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol66/iss1/3 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Judicial Review for Enemy Fighters: The Court's Fateful Turn in Exparte Quirin, the Nazi Saboteur Case Andrew Kent 66 Vand. L. Rev. 153 (2013) The last decade has seen intense disputes about whether alleged terrorists captured during the nontraditional post- 9/11 conflict with al Qaeda and affiliated groups may use habeas corpus to challenge their military detention or military trials. It is time to take a step back from 9/11 and begin to evaluate the enemy combatant legal regime on a broader, more systemic basis, and to understand its application to future conflicts. A leading precedent ripe for reconsideration is Ex parte Quirin, a World War II-era case in which the Supreme Court held that saboteurs admittedly employed by an enemy nation's military had a right to access civilian courts during wartime to challenge their trial before a military commission.
    [Show full text]
  • Volume 4 Issue 1 Fall/Winter 2015
    TM VOLUME 4 ISSUE 1 FALL/WINTER 2015 National Security Law Journal George Mason University School of Law 3301 Fairfax Drive Arlington, VA 22201 www.nslj.org © 2015 National Security Law Journal. All rights reserved. Library of Congress Publication Data (Serial) National Security Law Journal. Arlington, Va. : National Security Law Journal, 2013- K14 .N18 ISSN: 2373-8464 Variant title: NSLJ National security—Law and legislation—Periodicals LC control no. 2014202997 (http://lccn.loc.gov/2014202997) Past issues available in print at the Law Library Reading Room of the Library of Congress (Madison, LM201). VOLUME 4, ISSUE 1 (FALL/WINTER 2015) ISBN-13: 978-1523203987 ISBN-10: 1523203986 ARTICLES PLANNING FOR CHANGE: BUILDING A FRAMEWORK TO PREDICT FUTURE CHANGES TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT Patrick Walsh QUANTUM LAWMAKING: HOW NATIONAL SECURITY LAW HAPPENS WHEN WE’RE NOT LOOKING Jesse Medlong COMMENTS TERROR IN MEXICO: WHY DESIGNATING MEXICAN CARTELS AS TERRORIST ORGANIZATIONS EASES PROSECUTION OF DRUG TRAFFICKERS UNDER THE NARCOTERRORISM STATUTE Stephen R. Jackson CYBERSPACE: THE 21ST-CENTURY BATTLEFIELD EXPOSING SOLDIERS, SAILORS, AIRMEN, AND MARINES TO POTENTIAL CIVIL LIABILITIES Molly Picard VOLUME 4 FALL/WINTER 2015 ISSUE 1 PUBLISHED BY GEORGE MASON UNIVERSITY SCHOOL OF LAW Cite as 4 NAT’L SEC. L.J. ___ (2015). The National Security Law Journal (“NSLJ”) is a student-edited legal periodical published twice annually at George Mason University School of Law in Arlington, Virginia. We print timely, insightful scholarship on pressing matters that further the dynamic field of national security law, including topics relating to foreign affairs, homeland security, intelligence, and national defense. Visit our website at www.nslj.org to read our issues online, purchase the print edition, submit an article, learn about our upcoming events, or sign up for our e-mail newsletter.
    [Show full text]
  • Sarily Represent the Views of Either the Judge Advocate General"S School, U
    PRETRIAL RESTRAINTi A COMPARATIVE HISTORICAL ANALYSIS OF AMERICAN, BRITISH, AND CANADIAN MILITARY LAW A Thesis Presented to The Judge Advocate General's School, U. S. Army The opinions and conclusions expressed herein are those of the individual student author and do not neces- sarily represent the views of either The Judge Advocate General"s School, U. S. Army, or any other governmental agency. References to this study should include the foregoing statement. by Major Robert W. Letendre, OF102527 April, 1969 SCOPE A comparative historical study of American, British, and Canadian military law with respect to pretrial restraint or imprisonment, with particular emphasis accorded to the historical precedents of the imposition of time limitations for the serving of charges and the bringing to trial of an accused in confinement. TABLE OF CONTENTS CHAPTER PAGE I. INTRODUCTION I II. EVOLUTION OF MILITARY LAW PRIOR TO THE AMERICAN REVOLUTION 3 A. Historical Development of Articles o f war 3 B. Limitation on Courts-Martial Juris diction . ■. •• • 6 C. British Articles of War 1689-1749... 12 D. Limitation on Military Pretrial Con finement , 16 III. AMERICAN ARTICLES OF WAR FROM 1775 TO 1875 18 A. American Articles of War 1775-1861. 19 B . Civil War Enactments 30 C. Articles of War 1874 37 IV. AMERICAN MILITARY LAW IN THE 20ch CENTURY.37 A. Articles of War 1916 - 1920 37 B. Articles of War 1921 - 1969 51 V. BRITISH MILITARY LAW 54 A. Military Law of England 1774 - 1969.. 54 B. Military Law of Canada 1867 - 1969... 62 VI. CONCLUSIONS 69 TABLE OF CASES AND STATUTES 76 BIBLIOGRAPHY 79 I.
    [Show full text]
  • Pub. L. 108–136, Div. A, Title V, §509(A)
    § 777a TITLE 10—ARMED FORCES Page 384 Oct. 5, 1999, 113 Stat. 590; Pub. L. 108–136, div. A, for a period of up to 14 days before assuming the title V, § 509(a), Nov. 24, 2003, 117 Stat. 1458; Pub. duties of a position for which the higher grade is L. 108–375, div. A, title V, § 503, Oct. 28, 2004, 118 authorized. An officer who is so authorized to Stat. 1875; Pub. L. 109–163, div. A, title V, wear the insignia of a higher grade is said to be §§ 503(c), 504, Jan. 6, 2006, 119 Stat. 3226; Pub. L. ‘‘frocked’’ to that grade. 111–383, div. A, title V, § 505(b), Jan. 7, 2011, 124 (b) RESTRICTIONS.—An officer may not be au- Stat. 4210.) thorized to wear the insignia for a grade as de- scribed in subsection (a) unless— AMENDMENTS (1) the Senate has given its advice and con- 2011—Subsec. (b)(3)(B). Pub. L. 111–383 struck out sent to the appointment of the officer to that ‘‘and a period of 30 days has elapsed after the date of grade; the notification’’ after ‘‘grade’’. 2006—Subsec. (a). Pub. L. 109–163, § 503(c), inserted ‘‘in (2) the officer has received orders to serve in a grade below the grade of major general or, in the case a position outside the military department of of the Navy, rear admiral,’’ after ‘‘An officer’’ in first that officer for which that grade is authorized; sentence. (3) the Secretary of Defense (or a civilian of- Subsec. (d)(1).
    [Show full text]
  • Military Courts and Article III
    Military Courts and Article III STEPHEN I. VLADECK* TABLE OF CONTENTS INTRODUCTION .......................................... 934 I. MILITARY JUSTICE AND ARTICLE III: ORIGINS AND CASE LAW ...... 939 A. A BRIEF INTRODUCTION TO U.S. MILITARY COURTS ........... 941 1. Courts-Martial ............................... 941 2. Military Commissions ......................... 945 B. THE NORMATIVE JUSTIFICATIONS FOR MILITARY JUSTICE ....... 948 C. THE SUPREME COURT’S CONSTITUTIONAL DEFENSE OF COURTS-MARTIAL ................................. 951 D. THE SUPREME COURT’S CONSTITUTIONAL DEFENSE OF MILITARY COMMISSIONS .................................... 957 II. RECENT EXPANSIONS TO MILITARY JURISDICTION ............... 961 A. SOLORIO AND THE SERVICE-CONNECTION TEST .............. 962 B. ALI AND CHIEF JUDGE BAKER’S BLURRING OF SOLORIO’S BRIGHT LINE .......................................... 963 C. THE MCA AND THE “U.S. COMMON LAW OF WAR” ............ 965 D. ARTICLE III AND THE CIVILIANIZATION OF MILITARY JURISDICTION .................................... 966 E. RECONCILING THE MILITARY EXCEPTION WITH CIVILIANIZATION .................................. 968 * Professor of Law, American University Washington College of Law. © 2015, Stephen I. Vladeck. For helpful discussions and feedback, I owe deep thanks to Zack Clopton, Jen Daskal, Mike Dorf, Gene Fidell, Barry Friedman, Amanda Frost, Dave Glazier, David Golove, Tara Leigh Grove, Ed Hartnett, Harold Koh, Marty Lederman, Peter Margulies, Jim Pfander, Zach Price, Judith Resnik, Gabor Rona, Carlos Va´zquez, Adam Zimmerman, students in my Fall 2013 seminar on military courts, participants in the Hauser Globalization Colloquium at NYU and Northwestern’s Public Law Colloquium, and colleagues in faculty workshops at Cardozo, Cornell, DePaul, FIU, Hastings, Loyola, Rutgers-Camden, and Stanford. Thanks also to Cynthia Anderson, Gabe Auteri, Gal Bruck, Caitlin Marchand, and Pasha Sternberg for research assistance; and to Dean Claudio Grossman for his generous and unstinting support of this project.
    [Show full text]
  • The Common Law of War
    Cornell University Law School Scholarship@Cornell Law: A Digital Repository Cornell Law Faculty Publications Faculty Scholarship 11-2016 The ommonC Law of War Jens D. Ohlin Cornell Law School, [email protected] Follow this and additional works at: http://scholarship.law.cornell.edu/facpub Part of the International Law Commons Recommended Citation Jens David Ohlin, "The ommonC Law of War," 58 William & Mary Law Review (2016) This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Faculty Publications by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. THE COMMON LAW OF WAR JENS DAVID OHLIN* ABSTRACT In recent litigation before U.S. federal courts, the government has argued that military commissions have jurisdiction to prosecute offenses against the "common law of war," which the government defines as a body of domestic offenses, such as inchoate conspiracy, that violate the American law of war. This Article challenges that definition by arguing that stray references to the term "common law of war"in historicalmaterials meant something completely different. By examining the Lieber Code, the writings of early natural law theorists, and early American judicial decisions, this Article con- cludes that the "common law of war" referred to a branch of the law of nations that applied during internalarmed conflicts, such as civil wars with non-state actors. This body of law was called "common," not because it was extended or elaboratedby the common law method of judge-applied law, but rather because it was "common" to all mankind by virtue of naturallaw, and thus even applied to internal actors, such as rebel forces, who were not otherwise bound by in- ternational law as formal states were.
    [Show full text]
  • Stacking the Deck Against Suspected Terrorists
    Stacking the Deck against Suspected Terrorists: The Dwindling Procedural Limits on the Government's Power to Indefinitely Detain United States Citizens as Enemy Combatants Nickolas A. Kacprowski* I. INTRODUCTION Jose Padilla is an American citizen.' The United States govern- ment took Padilla into custody on American soil in May 2002, and it has classified him as an enemy combatant, asserting that it can detain him indefinitely without charging him with any crime.2 Yaser Hamdi is also an American citizen who has been detained since Fall 2001, has been classified as an enemy combatant, and has yet to be charged with a crime.3 In Padilla v. Bush4, the District Court for the Southern Dis- trict of New York, like the Hamdi court, decided that because of the present war on terrorism, the government had the authority to classify citizens as enemy combatants. However, unlike the Hamdi court, the Padilla court ruled that, despite the government's classification of Padilla as an enemy combatant, he should be given access to an attor- ney in the prosecution of his habeas corpus petition and that the court would then review the charges and evidence and decide whether the government properly classified Padilla as an enemy combatant.5 Both the Padilla6 and the Hamdi7 courts applied a Supreme Court case from J.D. Candidate 2004, Northwestern University; B.A. Northwestern University, 2001. The author would like to thank his parents, Greg and Diane Kacprowski for a lifetime of love and support. The author recognizes two colleagues and friends at Northwestern, Len Conapinski and David Johanson, for their help with this Note.
    [Show full text]
  • The Civilianization of Military Law
    THE CIVILIANIZATION OF MILITARY LAW Edward F. Sherman* PART I I. INTRODUCTION Military law in the United States has always functioned as a system of jurisprudence independent of the civilian judiciary. It has its own body of substantive laws and procedures which has a different historical deri- vation than the civilian criminal law. The first American Articles of War, enacted by the Continental Congress in 1775,1 copied the British Arti- cles, a body of law which had evolved from the 17th century rules adopted by Gustavus Adolphus for the discipline of his army, rather than from the English common law.2 Despite subsequent alterations by Con- gress, the American military justice code still retains certain substantive and procedural aspects of the 18th century British code. Dissimilarity between military and civilian criminal law has been further encouraged by the isolation of the court-martial system. The federal courts have always been reluctant to interfere with the court-martial system, as ex- plained by the Supreme Court in 1953 in Burns v. Wilson:3 "Military law, like state law, is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment. This Court has played no role in its development; we have exerted no super- visory power over the courts which enforce it .... As a result, the court-martial system still differs from the civilian court system in such aspects as terminology and structure, as well as procedural and sub- stantive law. The military has jealously guarded the distinctive aspects of its system of justice.
    [Show full text]
  • The Influence of Ex-Parte Quirin and Courts
    Copyright 2008 by Northwestern University School of Law Vol. 103 Northwestern University Law Review Colloquy THE INFLUENCE OF EX PARTE QUIRIN AND COURTS-MARTIAL ON MILITARY COMMISSIONS Morris D. Davis* Professor Greg McNeal was an academic consultant to the prosecution during my tenure as the Chief Prosecutor for the military commissions at Guantánamo Bay, Cuba. We had similar perspectives on many issues, and we still confer on detainee matters. I concur with the views expressed in his essay.1 I write to address two issues Professor McNeal identified and com- ment on how they affect the military commissions. First, I examine the case of the Nazi saboteurs—captured, tried, and executed in the span of seven weeks in 1942—and its influence on the decision in 2001 to resurrect military commissions. Second, I assess the conflicting statutory provisions in the Military Commissions Act and the impact on full, fair, and open tri- als. I. ATTEMPTING TO REPEAT HISTORY Professor McNeal argues that the administration chose military com- missions to protect information collected for intelligence (intel) purposes from disclosure. Safeguarding intel, particularly the sources and methods used to acquire information, was a key factor, but I believe the decision had a broader basis heavily influenced by a precedent-setting trial in 1942 that became the template for the President‘s Military Order of November 13, 2001.2 Shortly after midnight the morning of June 13, 1942, four men left a German submarine and came ashore at Amagansett Beach, New York.3 * Morris D. Davis served as Chief Prosecutor for the military commissions at Guantánamo Bay, Cuba, from September 2005 to October 2007.
    [Show full text]