Military Commissions and the Lieber Code: Toward a New Understanding of the Jurisdictional Foundations of Military Commissions
Military Law Review, Vol. 203, p. 1, Spring 2010
77 Pages Posted: 31 Oct 2010 Last revised: 7 Mar 2011
Date Written: April 1, 2010
Over the past eight years, the use of military commissions at Guantanamo Bay has thrust this rarely used military venue into the forefront of public attention. Legal scholars have increasingly looked to the history of the commissions when addressing the debates over the proper and appropriate manner for their use. Despite this heightened interest in the history of these tribunals, scholars and commentators have assumed the underlying jurisdiction of commissions to try violations of the laws of war, devoting little attention to this topic. Contrary to various assumptions, military commissions have not always had jurisdiction over violations of the laws of war.
Rather, the jurisdiction of military commissions expanded significantly during the American Civil War. Most important to the expansion of the commission jurisdiction was the promulgation of the Lieber Code in late April, 1863. For the first time, the Lieber Code definitively granted military commissions subject matter and in personam jurisdiction to try violations of the laws of war. Soon after the promulgation of the Lieber Code, military commissions began appearing all over the United States. By the end of the Civil War, over 3000 individuals were tried by commission for an enormous variety of different offenses.
The value of the Lieber Code in shaping Civil War commissions also extends to the system of contemporary military commissions. The Lieber Code was the primary basis for expanding military commission jurisdiction over those individuals accused of violations of the laws of war. Modern day commissions, including those used during World War II and those currently in use at Guantanamo Bay, can directly trace their lineage to the Lieber Code.
This article provides a historical context for the evolution of military commissions following the American Civil War. With knowledge gained from archival research, it offers the first comprehensive description of the role of the Lieber Code in expanding military commission jurisdiction over violations of the laws of war.
Keywords: Military commissions, the Lieber Code
JEL Classification: K10, K14, K19, K39, K42, K49
Suggested Citation: Suggested Citation