Precedents Lost: The Neglected History of the Military Commission

Abstract

Although both constitutional and statutory authority is invoked by the conduct of military commission trials, these tribunals are fundamentally common law institutions. Proper understanding of historical precedent is essential to the validity of any common law trial, and in the case of military commissions is also key to interpreting applicable constitutional and statutory mandates. Despite this, current historical knowledge about the commissions is both limited in scope and plagued with common misconceptions; even government participants routinely cite a trial that never happened as a precedent. The original Anglo-American understanding was that only the legislature could establish the personal jurisdiction of military trials. The military commission, the common law counterpart to the statutory court-martial, was not created until 1847, and was based closely on the procedural mandates and due process protections accorded by courts-martial. This commonality was maintained through thousands of cases in the Civil War and Philippine Insurrection, and the senior judge advocate in the Philippines actually drafted the modern statutory language.

Departures from court-martial practice developed during World War II, but do not necessarily constitute valid grounds for continuing to do so today, particularly in light of the significant developments in both international and U.S. military law since that era. The constitutional authority invoked by U.S. trials for law of war violations is committed to Congress, so modern claims of significant executive authority in this field are misplaced, and courts should continue to hear and resolve challenges to commission jurisdiction and procedure.

Keywords: Military commission, law of war, terrorism, war crimes

JEL Classification: K14, K33, K42