Past is Prologue: Military Commissions in US Military Justice History

Past is Prologue: Military Commissions in US Military Justice History

In the recent Al-Bahlul v. United States appeal, the history of military commissions in the United States has proved to be central to the discussion within the US Court of Appeals for the D.C. Circuit on the constitutionality of key aspects of the Military Commissions Act. Two recent articles written by Martin S. Lederman of Georgetown University Law School focusing on the actual practice of the United States military from the Revolution through World War II are a significant contribution to our understanding of the military justice precedents underlying any evaluation of this statute.

In Spies, Saboteurs, and Enemy Accomplices: History’s Lessons for the Constitutionality of Wartime Military Tribunals, 105 GEO. L. J. 1529 (2017), Prof. Lederman reviews the Revolutionary War precedents charging espionage and aiding the enemy that are claimed to underpin the constitutional permissibility of charges in modern day military commissions, and extends his analysis forward to the relevant cases in the Civil War, World War I and World War II, to include Ex parte Quirin, a case described both as the “high water mark of military power to try enemy combatants for war crimes” and “not [the] Court’s finest hour.” In The Law (?) of the Lincoln Assassination, published in 118 COLUM. L. REV. 323 (2018), Professor Lederman evaluates the struggles of President Lincoln and his administration with the permissible scope of military justice, and evaluates the military tribunal that was ultimately convened to try the Lincoln’s assassination conspirators.

The National Institute of Military Justice is grateful for both Professor Lederman and Georgetown Law Journal’s permission to post his paper in the topic area of our website, and for Prof. Lederman’s permission to link to his article available at the Columbia Law Review’s website.

NIMJ’s mission is to educate the American public about its military justice system, and to advocate for its fair administration. This type of in-depth scholarship is valuable to all of us who are dedicated to this mission, both at NIMJ, in the academy, in the military, and within the American public.  In addition to informing NIMJ about recent scholarship in military justice, we encourage other scholars to submit their articles for  NIMJ’s annual Kevin J. Barry Writing Award for excellence, an award designed to reward outstanding scholarship by practitioners and scholars, and for aspiring law students to focus on military justice research and writing, and submit their papers for NIMJ’s annual Rear Admiral John S. Jenkins Writing Award.

Dru Brenner-Beck
President, National Institute of Military Justice