Military Trials and Martial Law Although these two kinds of legal procedure are often conceptually linked, they are in fact separate and widely disparate. Military trials, usually referred to as courts‐martial, are judicial proceedings conducted under the control of military, rather than civilian, authorities. Martial law, more difficult to define, can be described as simply the will of the commanding general.
Courts‐martial are the oldest federal tribunals in American legal history. Rules for their operation were enacted by the Continental Congress in 1775, a year before the
Declaration of Independence and twelve years before the Constitution was written. Historically, the U.S. Supreme Court has, with few exceptions, declined to accept
appeals from or to enjoin military trials. The Court states its rationale for this position in
Dynes v. Hoover (1858), in which it ruled that, where a military trial has been duly authorized and has exercised lawful jurisdiction, its findings cannot be altered by civilian courts. The Court based its conclusion on Article I of the Constitution, which specifically grants Congress the authority to make rules and regulations for the governance of the armed forces, including military trials. This authority has usually been held to be independent of the
judicial power conferred by
Article III. Further, the
Fifth Amendment specifically exempts courts‐martial from
grand jury proceedings.
This virtual independence of military courts from supervision by civilian courts has posed difficulties for litigants seeking relief from improper verdicts. They have had to attack the military judicial process collaterally by, for example, challenging the jurisdiction of the military court to try them in the first place. The Supreme Court has been sympathetic to this tactic only on rare occasions. The case of
Ex parte Milligan (1866) held that military courts could not try a civilian when civilian courts were open and outside the theater of war, and civil government in control of the community. In
O'Callahan v. Parker (1969), a divided Court held that in order for a military trial to be lawful, the offense for which the defendant is tried must be “service connected”: that is, it must be directly related to the functions of the military. Less than twenty years later, however, the Court overruled O'Callahan and substituted service status as the criterion for military trial. In recent years the Court has made it clear that military appellate procedures are to be the primary, and often the only, route available to litigants involved in military trials.
American legal scholars have had difficulty in defining martial law. A slightly more elegant definition than the “will of the commanding general” might be that martial law is simply whatever it takes to preserve governmental authority within an area and protect it from enemy attack. In the American context, martial law is the rare exception. It presumes a breakdown in normal civilian governmental operations, and it has always been conceived of as a strictly temporary substitute for civil public law and administration. Its imposition is not authorized by specific constitutional provision, and because martial law has usually been imposed during a time of crisis, the Supreme Court has tried to avoid placing itself in conflict with the military.
The
Milligan case might appear to be an exception to this tendency. In actuality, the dispute concerned a civilian, not a member of the military, and the decision was handed down long after
Civil War hostilities had ended, when its implementation could do no harm to the war effort. Indeed, in the earlier case of
Ex parte Vallandigham (1864), involving much the same question, the Court refused to intervene. This preference was again reflected during
World War II, when the Court refused to entertain a challenge to military actions leading to the internment of Japanese‐Americans in concentration camps. Thus, to some extent, martial law and judicial tolerance for military‐trial procedures remain difficult to reconcile with traditional conceptions of American civil rights. Historically, the demands of “military necessity,” especially when raised in time of war, have been and probably will continue to be inhibiting factors in the Supreme Court's decisions.
See also
Military Justice.
Bibliography
Charles A. Shanor and and Timothy P. Terrell , Military Law (1980).
Jonathan Lurie