Civilians in Military Tribunals?
What Conditions Allow for Military Jurisdiction Over Civilians
Military justice covers all men in uniform, wherever they may be stationed. Upon induction into service, erring military men and women, whether active or inactive, may be tried under a military court for various offenses, including desertion and willful disobedience.
Military vs. Civilian Court Jurisdiction
While not as dramatic as the movies, members of the U.S Armed Forces may be asked to appear before civilian courts, too. In fact, if a serviceman commits a criminal act outside of their duties, they’re subjected to criminal justice and may be tried under a federal court.
Perhaps, not many people are aware that civilians, in some circumstances, may be subjected to court-martial, too, and therefore, may need defense attorneys to represent them in a military court.
This article aims to discuss the special circumstances wherein a civilian may be tried in a military court, as well as touches on the basics of the courts-martial.
The Basics Of Military Law
The Uniform Code of Military Justice (UCMJ) Title 10 of the United States Code is the cornerstone of the United States Military Law. UCMJ sets the binding and legal rules, as well as the procedures applicable to persons serving in the military. The said law applies to all armed personnel, whether located in the US or on active or non-active military duties overseas.
The US Congress created the Code at the heels of World War II, with the aim of establishing a standardized, fair system of criminal justice for all branches of the military.
The direct question likely in your mind right now is, “Can military law apply to civilians?” The short answer is yes, but only under special circumstances.
These special circumstances include the declaration of martial law, coverage of civilians employed by the armed forces, and specific provisions of the law of war, otherwise known as the International Humanitarian Law (IHL).
Martial Law
Declaration of Martial Law
- Military authority takes over civilian rule upon the declaration of martial law. As a result, the military holds immense power to run essential branches of the State, including the police, courts, legislature, or any lawmaking body.
In the event of martial law, the military courts may be used to try civilians, as stipulated in the Uniform Code of Military Justice. As such, military authorities lead the implementation of peace and order, including serving the arrest warrants and trial proceedings of those who are deemed to have committed crimes or activities aimed at undermining the government, among a host of other offenses.
Without the declaration of martial law, civilians in the United States can’t be tried under the military courts.
Civilian Employees Of The US Army, Navy, And Air Force
Civilian Employees
- The Uniform Code of Military Justice stipulates that military law also covers civilians “serving with, employed by, or accompanying the armed forces without the continental limits of the United States—except in Puerto Rico, the Panama Canal Zone, the Hawaiian Islands, and the Virgin Islands.” Military justice likewise covers individuals, whether American or of another nationality and a service personnel’s dependent overseas.
As such, these persons serving with or accompanying a staff of the US Armed Forces personnel in the field may be subjected to a court-martial, when necessary.
The Code also states that any person, military or civilian, who “aids or attempts to aid, the enemy,” or who, “knowingly harbors or protects, or gives intelligence to, or communicates or corresponds with, or holds any intercourse with the enemy, either directly or indirectly,” may be tried by courts-martial or military commission and, “given death or such lesser sentence as may be appropriate.” [1]
Law Of War
Under Conditions of IHL
- Also called the International Humanitarian Law (IHL), the Law of War aims to ‘humanize’ war by limiting the horrifying effects of armed conflict. The law consists of internationally accepted rules that protect all combatants, civilians, internationally displaced persons, and prisoners of war (POW), as set forth by the Geneva Conventions. As an internationally recognized treaty, the Geneva Conventions state that POWs on trial for war crimes undergo the same procedures as the holding military's own forces. Thus, courts-martial may be convened to try POWs for war crimes.
What Is A Court-Martial?
A judicial court for trying and determining guilt of individuals subject to military law.
Civilians and servicemen facing cases before the military law appears before the court-martial, the military’s own court system.
The court-martial system is comprised of several forms of military tribunals and commissions. As commander-in-chief, the president has the power to convene military commissions and tribunals, with applicable laws culled from the Constitution and the Code. Military tribunals come in three different types: General Courts-Martial, Special Courts-Martial, and Summary Courts-Martial.
Military commissions and tribunals can conduct legal proceedings against US and non-US citizens charged with violating the law.
Aside from military-specific crimes, such as cowardice, desertion, and insubordination, like traditional civilian courts, the UCMJ hears various types of crimes committed under its jurisdiction; among them theft, robbery, assault, fraud, and murder. The UCMJ likewise carries out many international laws of war, which apply during an armed conflict, whether domestic or international.
Who Is The Judge Advocate General?
In the United States military, the Officers of the Judge Advocate General’s Corps are attorneys who serve as legal advisors to the command to which they belong. These lawyers deal with a host of issues that cover various branches of law. The JAGs, as they’re also called, also act as prosecutors for the US military men when conducting courts-martial.
The UCMJ assigns these attorneys with both the defense and prosecution of military law. Seasoned officers of the JAG Corps often serve as military judges in courts-martial.
Types Of Courts-Martial
Below are the three types of military courts and the types of offenses they handle:
- Summary Courts-Martial This type of court needs only one commissioned officer to act as a judge and jury. Cases heard under this court are classified under the Code as less serious.
Under the proceedings, the accused is given the legal right to call a witness, cross-examine witnesses, produce evidence, and testify. They also have the right to self-incrimination by remaining silent, too.
The accused don’t have the right to a free military lawyer but can hire a civilian defense attorney.
If found guilty, a summary court-martial can penalize a serviceman for up to one-month of confinement, hard labor, pay a forfeiture, and reduction in rank. - Special Courts-Martial This military court is set up for minor offenses and consists of a panel of at least three members and a military judge. Enlisted members may request that the panel be made up of at least one-third of enlisted personnel. However, an accused may be tried by only a military judge upon request.
In this type of court, the accused has a right to be represented by a free military attorney or may hire their own civilian defense lawyer.
A uniformed US Armed Forces staff may receive heavier punishments, such as a bad conduct discharge, confinement of up to 1-year, hard labor without confinement for up to three months, and forfeiture of up to two-thirds their monthly pay for up to one year or so. Enlisted members may be reduced to the lowest enlisted pay grade. Officers found guilty in a special court-martial can't be reduced in rank or discharged as a sentence of special court martial. - General Courts-Martial For More Serious Offenses Characterized as a felony court, a general court-martial consists of a panel of at least five members and a military judge. An accused may be tried by a military judge alone, and request that the panel be composed of at least one-third of enlisted personnel.
The accused has the right to be represented by a military attorney for free, but likewise has the option to hire a civilian defense lawyer paid for by the accused. Punishments that may be imposed by this court is quite general, as long as it’s not banned by UCMJ rules.
The accused has the right to a military defense counsel at a special or general court-martial, as well as a paid civilian defense attorney. This right to representation continues through other proceedings such as filing an appeal. - Military Tribunals In the United States, special court commissions created in time of war to try enemy forces accused of violating the laws of war. While uncommon, historical precedent exists where tribunals were used to try civilians under military law.
Military Tribunals for Treason
Military tribunals for civilians were used during the revolutionary war and immediately following the Civil War. Military courts used to try civilians was ruled unconstitutional by the Supreme Court in Ex parte Milligan in any jurisdiction where civil courts are functioning.
What Are The Defendant’s Rights Under The U.S. Military Law?
Anyone who’s accused of an offense and is being tried under the court-martial has the following procedural rights, as stipulated in the Code:
- A free military defense lawyer
- A civilian defense attorney, whose services will have to be paid by the service man
- Not to answer questions without the presence of an attorney
- To refuse search and seizure without probable cause
- A fair trial
- The right to appeal
Key Takeaways
As may be gleaned from the information discussed earlier, a person accused under the military court has procedural rights that aren’t too different from the rights of a person accused of crimes under a civilian court.
While circumstances where civilians are tried in military court, have been rare, the fact remains that as with civil courts, a defense attorney specializing in military court proceedings can help you win the case.
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External Resources
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