International agreements define the proper treatment of prisoners and the acceptable treatment of civilians during times of war. This has had a practical reason as it has traditionally prevented field commanders from committing atrocities that would so inflame the enemy that they would seek widespread revenge on their opponent. To assure that armies would keep war civilized, special processes have been set up to deal with those that transgress the rules and prearranged agreements. A court martial is often used to prosecute individuals of one's own armed forces. However, when the enemy is conquered and has violated the principle and sensibilities of the victor, they can become the defendants in a military tribunal, a seldom used process to handle unusual cases in unique situations.
This paper will explain the process of the military tribunal. It will discuss the history of US tribunals and their relevance to international events and conventions. It will define the difference between civilian courts, courts martial, and the military tribunal. It will further explore the requirements and rationalizations for holding a military tribunal as opposed to civilian courts. More importantly, it will discuss the constitutional evolution of the military tribunal and will examine key cases from the past. ...
This paper will not form any legal opinion on the constitutionality of the military tribunal. It also will not offer a social or political opinion of the process. These are beyond the scope of this research. It will, however, offer the rationale used by the courts and government officials to arrive at their various opinions. It will include both sides of the controversy as seen by those that are most directly involved. It will highlight the unusual cases in history that have created the controversy over congressional and presidential power with respect to military tribunals.
To begin a discussion of the military tribunal, it needs to be put into the context of more conventional and familiar court systems. The military tribunal differs from our civilian courts and a court martial in their purpose, approach, rules of evidence, and method of operation. Court martial is used to prosecute members of the military for criminal offenses that may be a violation of the articles of war or crime such as theft, violence, or criminal activity. They are similar to civilian courts in their guarantee of rights except that they make no allowance for a jury of peers. The jury is composed of appointed military officers. They do follow the same rules of evidence and due process for the defendant.
Where a civilian court is used to prosecute civilians who violate the civilian law, tribunals have historically been used for the purpose of prosecuting an armed service's personnel who have violated the articles of war or international agreements. However they have occasionally been used in extraordinary situations to control the civilian population. The war on terror has brought about new definitions of 'enemy combatant' and the current