Kangaroo Court or Competent Tribunal?: Judging the 21st Century Military Commission

Abstract

President Bush's military commission order, based upon FDR's guidance for the 1942 trial of Nazi saboteurs, authorized procedures departing substantially from court-martial practice. This paper demonstrates the military commission, whose actual origin is traced to the Mexican War in 1847, differed from the statutory court-martial primarily in jurisdiction, not procedure. It argues that Article 36 of the Uniform Code of Military Justice should be read, particularly in light of developments in contemporary international law and the Charming Betsy canon, to require continued commonality between the two tribunals. This argument was substantially adopted by the district court in Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 166 n12, 169 n15, 170 n16 (D.D.C. 2004).