DOCSLIB.ORG

Brief of Amicus Curiae the U.S. Army Defense Appellate

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Brief of Amicus Curiae the U.S. Army Defense Appellate Nos. 19-108 and 19-184 IN THE Supreme Court of the United States ____________________ UNITED STATES, Petitioner, v. MICHAEL J.D. BRIGGS, Respondent. ____________________ UNITED STATES, Petitioner, v. RICHARD D. COLLINS, Respondent. ____________________ UNITED STATES, Petitioner, v. HUMPHREY DANIELS III, Respondent. ____________________ On Writs of Certiorari to the United States Court of Appeals for the Armed Forces ____________________ BRIEF OF U.S. ARMY DEFENSE APPELLATE DIVISION AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS __________ ELIZABETH G. MAROTTA TIFFANY D. POND Counsel of Record JOSEPH C. BORLAND Defense Appellate Division ZACHARY A. GRAY 9275 Gunston Road JASON X. HAMILTON Fort Belvoir, VA 22060-5546 PAUL T. SHIRK (703) 693-0647 THOMAS J. TRAVERS [email protected] BRIANNA C. TUOHY Defense Appellate Division 9275 Gunston Road Fort Belvoir, VA 22060-5546 Counsel for Amicus Curiae February 19, 2020 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................ ii INTEREST OF AMICUS CURIAE....................................... 1 INTRODUCTION AND SUMMARY OF ARGUMENT ............. 1 I. The Development of the Articles of War ................ 3 A. The Initial Developments .............................. 4 B. The 1806 Amendments ................................. 5 C. Amendments from 1806–1916 ...................... 7 D. Amendments from 1916–1949 ...................... 7 E. The Uniform Code of Military Justice ........ 10 II. The Courts’ Recognition of Constitutional Rights Under the Uniform Code of Military Justice ................................................. 10 III. Comparison of Individual Articles ..................... 13 A. Servicemembers’ Constitutional Rights are Only Curtailed for Military-Specific Reasons. 14 1. Fourth Amendment ............................... 14 2. Grand Jury ............................................ 16 B. Congress has Enshrined, and even Expanded, Constitutional Protections for Servicemembers, Absent Military Necessity. 18 1. Double Jeopardy Rights ........................ 18 2. Speedy Trial Rights ............................... 21 IV. Article 55 and the Eighth Amendment .............. 23 A. The Eighth Amendment applies to servicemembers. .......................................... 24 A. Congress codified Eighth Amendment equivalent protections through Article 55, thereby mandating Eighth Amendment protections for servicemembers .................. 26 CONCLUSION .............................................................. 30 ii TABLE OF AUTHORITIES1 Cases Estelle v. Gamble, 429 U.S. 97 (1976) ...................... 24 Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866) ..................................................................... 16 Glasser v. United States, 315 U.S. 60 (1942) ..................................................................... 11 Grafton v. United States, 206 U.S. 333 (1907) ............................................................... 19, 20 In re Stubbs, 133 F. 1012 (W. D. Wash., 1905) ...................................................................... 20 Loving v. United States, 517 U.S. 748 (1996) ..................................................................... 24 Ortiz v. United States, 138 S. Ct. 2165 (2018). .......................................................... 4, 10, 16 United States v. Avila, 53 MJ 99 (C.A.A.F. 2000) ...................................................... 24 United States v. Burton, 21 U.S.C.M.A. 112 (C.M.R. 1971) .................................................. 22 United States v. Doyle, 4 C.M.R. 137, 139 (C.M.A. 1952) ......................................................... 14 United States v. Easton, 71 MJ 168 (C.A.A.F. 2012) ...................................................... 11 United States v. Edmond, 41 M.J. 419, 421 (C.A.A.F. 1995) ............................................... 23 United States v. Harcrow, 66 MJ 154 (C.A.A.F. 2008) ...................................................... 11 United States v. Hartman, 69 MJ 467 (C.A.A.F. 2011) ...................................................... 11 United States v. Jones, 78 MJ 37 (C.A.A.F. 2018) ...................................................... 11 United States v. Kossman, 38 M.J. 258 (C.A.A.F. 1993) ................................................ 22, 23 Authorities cited in the table infra are therein contained. iii United States v. Martinez, 19 M.J. 744, 748 (C.M.R. 1984) .................................................. 24 United States v. Matthews, 16 MJ 354 (C.M.A. 1983) ......................................................... 24 United States v. Olano, 507 U.S. 725 (1993) ..................................................................... 11 United States v. Pena, 64 MJ 259 (C.A.A.F. 2007) ...................................................... 24 United States v. Stringer, 17 C.M.R. 122, 127 (C.M.A. 1954) .................................................. 20 United States v. Stuckey, 10 M.J. 347, 352 (C.M.A. 1981) .................................................. 14 United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011) ...................................................... 11 United States v. Vigneault, 3 U.S.C.M.A. 247, 252 (C.M.A. 1953) .......................................... 23 United States v. Vogan, 35 M.J. 32, 33 (C.A.A.F. 1992) ...................................................... 23 United States v. Wappler, 9 C.M.R. 23 (C.M.A. 1953) ......................................................... 24 United States v. Worley, 3 C.M.R. (AF) 424 (1950) .............................................................. 14 Wade v. Hunter, 336 U.S. 684 (1949) ....................... 19 United States Constitution U.S. CONST. amend VI. ............................................. 21 U.S. CONST. amend. IV ............................................. 14 U.S. CONST. amend. V. .............................................. 16 U.S. CONST. amend. VIII ............................................. 2 U.S. CONST. art. I, § 8. ................................................ 5 Statutes 10 U.S.C. § 802 .......................................................... 10 10 U.S.C. § 810 .......................................................... 22 10 U.S.C. § 855 ............................................................ 2 10 U.S.C. § 870 ............................................................. i iv 9th Cong., 2 Stat. 360 (1806). ............................... 6, 18 Legislative Materials 2 JOURNALS OF THE CONTINENTAL CONG., 1774–1789 (1775). ............................................. 4, 25 5 JOURNALS OF THE CONTINENTAL CONG., 1774–1789 (1776). ................................................... 4 96 CONG. REC. 1354 (1950) ....................................... 21 Establishment of Military Justice- Proposed Amendment of The Articles of War: Hearing Before the S. Subcomm. on Military Affairs, 66th Cong. (1919) ....... 9, 17, 26 Revision of the Articles of War: Hearing Before the S. Subcomm. on Military Affairs, 64th Cong. (1916). ................................ 8, 25 Revision of the Articles of War: Hearing on H.R. 23628 Before the H. Comm. on Military Affairs, 62nd Cong. (1912) ........................ 8 S. REP. NO. 81-486, at 19–20 (1949). ........................ 20 Uniform Code of Military Justice: Hearings on H.R. 2498 Before a Subcomm. of H. Comm. On Armed Services, 81st Cong. (1949). ...................... 10, 21, 28 Regulations MANUAL FOR COURTS-MARTIAL, UNITED STATES (1917) ................................................ 7, 9, 25 MANUAL FOR COURTS-MARTIAL, UNITED STATES (1921) ................................................. passim MANUAL FOR COURTS-MARTIAL, UNITED STATES (1951) ........................................................ 10 MANUAL FOR COURTS-MARTIAL, UNITED STATES (2019) .................................................. 18, 28 Rule for Court Martial 707 ....................................... 22 v Other Materials 6 Op Atty Gen 506 (1854) ......................................... 19 6 Op. Atty Gen 413 (1854) ........................................ 19 JOHN QUINCY ADAMS, MEMOIRS OF JOHN QUINCY ADAMS (1874).............................................. 5 Letter from William Tudor to John Adams (Jul. 7, 1776) in THE ADAMS PAPERS, PAPERS OF JOHN ADAMS, VOL. 4, FEBRUARY–AUGUST 1776 (Robert J. Taylor, ed.) (1979). .................................................. 4 WILLIAM WINTHROP, MILITARY LAW AND PRECEDENT (2d ed. 1920) ...................................... 19 INTEREST OF AMICUS CURIAE The Army Defense Appellate Division (DAD) represents soldiers on appeal from convictions at courts-martial pursuant to Article 70 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 870 (2018).1 This includes representation at the Army Court of Criminal Appeals, the Court of Appeals for the Armed Forces, and this Court. Id. Defense Appellate Division, including the authors of this brief, is comprised of active-duty attorneys and one civilian attorney.2 Army Defense Appellate Division has an inherent interest in the disposition of this case as it will affect current and future representation of soldier-clients. INTRODUCTION AND SUMMARY OF ARGUMENT The individual liberty protections provided by the United States Constitution—to include the Eighth Amendment prohibitions on the imposition of Cruel and Unusual Punishment—extend to servicemembers of the United States Armed Forces except in cases of narrow, well-established military exceptions. The history of military justice and the UCMJ support the conclusion
Load more

Recommended publications
  • 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]
  • 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]
  • 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]
  • Crowder, Enoch H., 1859-1932
    Enoch H. Crowder Papers (C1046) Collection Number: C1046 Collection Title: Enoch H. Crowder Papers Dates: 1884-1942 Creator: Crowder, Enoch H., 1859-1932 Abstract: Correspondence and other papers of judge advocate general who administered Selective Service in World War I, served as ambassador to Cuba, and, after his retirement from public life, advised sugar interests. Collection Size: 27 cubic feet (2045 folders, 7 volumes; also available on 51 rolls of microfilm) Language: Collection materials are in English. Repository: The State Historical Society of Missouri Restrictions on Access: Collection is open for research. This collection is available at The State Historical Society of Missouri Research Center-Columbia. If you would like more information, please contact us at [email protected]. Collections may be viewed at any research center. Restrictions on Use: Materials in this collection may be protected by copyrights and other rights. See Rights & Reproductions on the Society’s website for more information and about reproductions and permission to publish. Preferred Citation: [Specific item; box number; folder number Enoch H. Crowder Papers (C1046); The State Historical Society of Missouri Research Center-Columbia [after first mention may be abbreviated to SHSMO-Columbia]. Donor Information: The papers were donated to the Western Historical Manuscript Collection by the University of Missouri Office of Public Information on November 21, 1955 (Accession No. CA3248). Additions were made on January 20, 1956 and November 6, 1958 by David Lockmiller (Accession Nos. CA3261 and CA3369) and on March 31, 1966 by the University of Missouri Library (Accession No. CA3658). (C1046) Enoch H. Crowder Papers Page 2 Alternate Forms Available: The Enoch H.
    [Show full text]
  • State of Ambiguity: Civic Life and Culture in Cuba's First Republic
    STATE OF AMBIGUITY STATE OF AMBIGUITY CiviC Life and CuLture in Cuba’s first repubLiC STEVEN PALMER, JOSÉ ANTONIO PIQUERAS, and AMPARO SÁNCHEZ COBOS, editors Duke university press 2014 © 2014 Duke University Press All rights reserved Printed in the United States of America on acid-f ree paper ♾ Designed by Heather Hensley Typeset in Minion Pro by Tseng Information Systems, Inc. Library of Congress Cataloging-in-Publication Data State of ambiguity : civic life and culture in Cuba’s first republic / Steven Palmer, José Antonio Piqueras, and Amparo Sánchez Cobos, editors. pages cm Includes bibliographical references and index. isbn 978-0-8223-5630-1 (cloth : alk. paper) isbn 978-0-8223-5638-7 (pbk. : alk. paper) 1. Cuba—History—19th century. 2. Cuba—History—20th century. 3. Cuba—Politics and government—19th century. 4. Cuba—Politics and government—20th century. 5. Cuba— Civilization—19th century. 6. Cuba—Civilization—20th century. i. Palmer, Steven Paul. ii. Piqueras Arenas, José A. (José Antonio). iii. Sánchez Cobos, Amparo. f1784.s73 2014 972.91′05—dc23 2013048700 CONTENTS Introduction: Revisiting Cuba’s First Republic | 1 Steven Palmer, José Antonio Piqueras, and Amparo Sánchez Cobos 1. A Sunken Ship, a Bronze Eagle, and the Politics of Memory: The “Social Life” of the USS Maine in Cuba (1898–1961) | 22 Marial Iglesias Utset 2. Shifting Sands of Cuban Science, 1875–1933 | 54 Steven Palmer 3. Race, Labor, and Citizenship in Cuba: A View from the Sugar District of Cienfuegos, 1886–1909 | 82 Rebecca J. Scott 4. Slaughterhouses and Milk Consumption in the “Sick Republic”: Socio- Environmental Change and Sanitary Technology in Havana, 1890–1925 | 121 Reinaldo Funes Monzote 5.
    [Show full text]
  • Continuing Civilianization of the Military Criminal Legal System Fredric I
    College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 2017 From Rome to the Military Justice Acts of 2016 and beyond: Continuing Civilianization of the Military Criminal Legal System Fredric I. Lederer William & Mary Law School, [email protected] Repository Citation Lederer, Fredric I., "From Rome to the Military Justice Acts of 2016 and beyond: Continuing Civilianization of the Military Criminal Legal System" (2017). Faculty Publications. 1943. https://scholarship.law.wm.edu/facpubs/1943 Copyright c 2017 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs 512 MILITARY LAw REVIEW [Vol. 225 FROM ROME TO THE MILITARY JUSTICE ACTS OF 2016 AND BEYOND: CONTINUING CIVILIANIZATION OF THE MILITARY CRIMINAL LEGAL SYSTEM FREDRIC I. LEDERER* I. Introduction The recent, but unenacted, proposed Military Justice Act of 2016,' the very different and less ambitious, but enacted, Military Justice Act of 2016,2 and congressional actions and proposals to sharply modify the military criminal legal system to combat sexual assault and harassment3 provide both opportunity and necessity to reevaluate the fundamental need for and nature of the military criminal legal system. With the exception of the 1962 amendment to Article 15 of the Uniform Code of Military Justice to enhance the commander's punishment authority,' the modem history of military criminal law largely is defined by its increasing civilianization. My thesis is that we are close to the point at which that process will no longer meet the disciplinary needs of the modem armed forces, if, indeed, it does today.
    [Show full text]
  • Trial of Unlawful Enemy Belligerents Charles F
    Cornell Law Review Volume 29 Article 7 Issue 1 September 1943 Trial of Unlawful Enemy Belligerents Charles F. Barber Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Charles F. Barber, Trial of Unlawful Enemy Belligerents, 29 Cornell L. Rev. 53 (1943) Available at: http://scholarship.law.cornell.edu/clr/vol29/iss1/7 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. TRIAL OF UNLAWFUL ENEMY BELLIGERENTS CHARLES F. BARBER The Supreme Court introduced a new test of military jurisdiction when it decided in Ex parte Quinn.' that because the Nazi saboteurs were "unlaw- ful enemy belligerents" they were subject to trial by military commission. For a full understanding of the proper place of this newly discovered juris- dictional principle in our military and constitutional law, it will be necessary to examine the Articles of War to determine whether any or all of them are applicable to the trial by military commission of "unlawful enemy bel- ligerents," and if so to decide whether such Articles effect a valid congres- sional limitation upon the power of the President as Commander in Chief of the Army and Navy. Since these problems involve "unlawful enemy belligerents," it will be appropriate first to examine the meaning of the term.2 I. THE RULES OF WAR When civilized peoples exult at the news that their bombers have devas- tated a great city, one wonders what has become of the "laws of humanity and the dictates of the public conscience," which not so long ago sought to mitigate the severity of war by confining it, so far as possible, to the destruc- tion of the armed forces of the enemy.3 One wonders if the so-called "rules of war" are more than philosophers' revel-ies.
    [Show full text]
  • The Oldest North American Military Articles – the Circumstances Surrounding Their Enactment and Their Characteristics1
    CZASOPISMO PRAWNO-HISTORYCZNE Tom LXXII — 2020 — Zeszyt 1 Karol Łopatecki (Białystok) The oldest North American military articles – the circumstances surrounding their enactment and their characteristics1 INTRODUCTION The 16th century and the beginning of the 17th century are the golden age of the development of military articles in Europe. This was the time when this type of normative acts was very frequently published, modified, and it was also a time of their dynamic development. There were attempts to implement the majority of ideas in this area of military affairs by introducing them into military articles. It is worth mentioning that among the innovations, which appeared at the time, were the appearance of norms pertaining to rules of obedience which were patterned on ancient Rome, the introduction of shooting drills as well as of general military drills, and creating proper rules of behaviour in battle, enforcing hygiene rules, etc. The role of all of the aforementioned norms amounted to the following: organization of camp life (garrison); establishing the rules of military engagement; regulating the relations between soldiers and civilian population; shaping the issue of obedience, chain of command, and regulating the significance of an order; the introduction 1 K. Łopatecki, Najstarsze północnoamerykańskie artykuły wojskowe, “Czasopismo Prawno- Historyczne” [Journal of Law and History] [CPH] 2013, t. LXV, issue 1, pp. 175–201. The current version of the article has been prepared as a part of the SONATA research project of Narodowe
    [Show full text]
  • How the National Guard Grew out of Progressive Era Reforms Matthew Am Rgis Iowa State University
    Iowa State University Capstones, Theses and Graduate Theses and Dissertations Dissertations 2016 America's Progressive Army: How the National Guard grew out of Progressive Era Reforms Matthew aM rgis Iowa State University Follow this and additional works at: https://lib.dr.iastate.edu/etd Part of the Military History Commons, and the United States History Commons Recommended Citation Margis, Matthew, "America's Progressive Army: How the National Guard grew out of Progressive Era Reforms" (2016). Graduate Theses and Dissertations. 15764. https://lib.dr.iastate.edu/etd/15764 This Dissertation is brought to you for free and open access by the Iowa State University Capstones, Theses and Dissertations at Iowa State University Digital Repository. It has been accepted for inclusion in Graduate Theses and Dissertations by an authorized administrator of Iowa State University Digital Repository. For more information, please contact [email protected]. America’s progressive army: How the National Guard grew out of progressive era reforms by Matthew J. Margis A dissertation submitted to the graduate faculty in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY Major: Rural, Agricultural, Technological, Environmental History Program of Study Committee: Timothy Wolters, Major Professor Julie Courtwright Jeffrey Bremer Amy Bix John Monroe Iowa State University Ames, Iowa 2016 Copyright © Matthew J. Margis, 2016. All rights reserved. ii DEDICATION This is dedicated to my parents, and the loving memory of Anna Pattarozzi,
    [Show full text]