This entry is a subentry of Military Justice.
Military courts can be classified by the persons over whom they exercise their jurisdiction. Courts‐martial and military courts of inquiry are concerned with members of the armed forces. Military commissions and provost courts (operated by officers of the provost marshal general) exercise their power over civilians who, although not affiliated with the military, may face a military court in time of war or rebellion. In the early days of the republic, the distinction was not as clearly drawn. Winthrop's Military Law and Precedents remarks on the courts‐martial of civilians for collaboration with the traitor Benedict Arnold in 1780, for spying on New Orleans in 1815, and for inciting and supplying the Creek Indians in Florida in 1818.
The same confusion attended courts of inquiry, authorized by the Articles of War, and considered to be quasi‐judicial boards of investigation; yet it was such a court, convened by Gen. George Washington, which recommended that Maj. John André of the British army be treated as a spy and executed. Courts of inquiry were common in the 19th century, when one was used to inquire into the conduct of Major Reno at the 1876 Battle of the Little Bighorn. However, they came to be replaced by less formal administrative boards. Still authorized by the Uniform Code of Military Justice, they have in recent years only been utilized by the U.S. Navy, for example, to deal with the losses of vessels such as the USS Scorpion, and in the Pueblo incident (1968).
Similarly, military commissions (established to try civilians for criminal offenses) and provost courts (intended to resolve civil disputes) are still authorized by the Uniform Code. When established in occupied territory and utilized to try cases involving local residents, these courts derive their authority from international law. Their authority over U.S. citizens was challenged in Ex parte Milligan (1866) and Duncan v. Kahanamoku (1946), in which majorities of the Supreme Court held that jurisdiction could not be exercised in areas where U.S. civil courts were open and functioning. However, in Ex parte Quirin (1942), a case involving Nazi saboteurs, a majority of the Court approved of a commission that tried alien enemies found in the United States. The Court similarly approved their use to try war crimes overseas, for example, in In re Yamashita (1946), which led to the execution of the Japanese general in charge of Manila in 1945.
Courts‐martial are the best known military courts. The 1775 Articles of War, following British practice, established three categories of such courts for the army: general, for the most serious offenses and for cases involving officers; regimental; and detachment or garrison courts. The so‐called inferior courts were limited in their jurisdiction to noncapital offenses, to offenders who were enlisted men (and, in the case of regimental courts, to enlisted personnel who were members of that unit), and by the kinds of punishment they could impose. The Naval Rules made no such distinction and relied on naval custom. Military law treatises uniformly state that courts‐martial were always composed of officers; had to consist of at least three members; and that there was no American equivalent of the English “Drum Head” court‐martial, where punishment was summarily imposed. However, Stephen Ambrose's account, in Undaunted Courage (1996), of the Lewis and Clark Expedition (1804–06) reports instances where enlisted men were appointed as the court‐martial to decide what punishment should be imposed on a fellow soldier, and one case in which the joint commanders appointed themselves as the court. The punishments imposed (typically flogging) were within statutory limits. The history of such informal courts remains to be written, as does the use of these courts to try prisoners of war (POWs). During World War II, seven German POWS in the United States were convicted of murder of fellow prisoners and were executed at the U.S. Disciplinary Barracks at Fort Leavenworth.
Nonjudicial punishment, permitted by naval custom (called in the navy, “Captain's Mast,” and in the Marine Corps, “Office Hours”), was prohibited in the army, whose statutes and regulations required a court‐martial composed of at least three officers. During the Civil War, single officer field officer's courts were permitted but ceased at the war's end. In 1890, the first single army summary courts were established by regulation; it was not until World War I and congressional passage of Article 104 that army commanders were permitted to impose minor punishments without trial. Even as army commanders' authority was thus enhanced, it was also curtailed by legislation which required that courts‐martial convictions be scrutinized by Boards of Review. With the passage of the Uniform Code of Military Justice (1950) that practice was extended to the air force, Coast Guard, the navy, and the Marine Corps. Board decisions could be reviewed by the Court of Military Appeals, subsequently renamed the U.S. Court of Appeals for the Armed Forces, as the boards became known as Military Courts of Appeal. Thus, for the past half century, the organization of courts‐martial has remained unchanged.
Bibliography
- William C. Dehart, Observations on Military Law, and the Practice of Courts‐Martial, with a Summary of the Laws of Evidence, as Applicable to Military Trials; Adapted to the Laws, Regulations and Customs of the Army and Navy of the United States, 1846, reprinted in Vol.
XVIII , Classics in Legal History, ed. Roy M. Mersky and J. Myron Jacobstein, 1973. - Edward M. Byrne, Military Law: A Handbook for the Navy and Marine Corps, 1970.
- Richard Whittingham, Martial Justice: The Last Mass Execution in the United States, 1988; repr. 1997.
- David J. Danecski, The Saboteurs Case,
Journal of Supreme Court History (1996), pp. 61–82. The Army Lawyer: A History of the Judge Advocate General's Corps, 1993
