Justice at War: Military Tribunals and Article III

Abstract

The interaction of Article III and military tribunals has inspired debate since the Supreme Court’s landmark decision in Ex Parte Milligan. Today, debate swirls around whether Article III bars military commissions from trying suspected terrorists on charges of inchoate conspiracy. That debate rages against the backdrop of the thorny jurisprudence on non-Article III tribunals generally, which Chief Justice Roberts recently acknowledged has failed to provide “sufficient guidance.” The military commission debate and a related conversation about courts-martial and Article III pit a protective camp against a functional approach. The protective camp, driven by classic opinions by Justices Brennan and Black, sees any step away from Article III’s safeguards of judicial independence as a long slide down a slippery slope. In contrast, the functionalist camp, exemplified by Justices Harlan and O’Connor, stresses the practicalities of adjudication and the need to defer to Congress’s Article I power. The functional arguments are more persuasive, in part because protective theorists, despite their salutary concern for judicial independence, fail to recognize the structural arguments for non-Article III tribunals. For example, English history well-known to the Framers demonstrates that courts-martial kept the military in check, thus preserving civilian control. Both courts-martial and military commissions can serve a similar structural function today, if their creation is governed by a limiting principle. A limiting principle for military commissions would require that any charge be reasonably related to violations of international law. Court-martial jurisdiction should be limited to service-members and contractors who purposefully affiliate with the armed forces. These limiting principles will enable Congress to exercise its Article I war powers while preserving the core value of judicial independence.