Military Justice

U.S. Air Force/Airman 1st Class Grace Lee

The U.S. military retains legal jurisdiction over members of the armed services and prisoners of war, as well as--more controversially--unlawful combatants and those who contest their status as combatants.  In the years after 9/11, much of the discussion on military justice has focused on the use of military jurisdiction to detain and try suspected combatants. However, issues such as sexual assault within the armed forces and the high-profile court-martial of Pfc. Chelsea Manning continue to remind us that questions of military justice are not confined to military detentions and commissions--indeed, far from it.

 

Latest in Military Justice

Campaign 2016

The Law of Retired Military Officers and Political Endorsements: A Primer

Among the many novel features of the 2016 presidential election campaign is the increasingly visible participation of former military officers in the political process. Below is a brief primer on the legal status of retired service members, and the statutes and rules which govern their participation in politics.

Military Commissions

The Difference Between the Article I and Article III Questions in Al Bahlul

Lawfare's Alex Loomis has a fascinating new paper up on SSRN about the scope of Congress's Article I power to "define and punish . . . Offences against the Law of Nations." But it's important to stress what Alex's article does not answer: Although Jack has suggested that Alex's analysis is relevant to the ongoing D.C. Circuit litigation in Al Bahlul over the constitutional powerof Guantánamo military commissions to try offenses like inchoate conspiracy, it goes only to the Article I question presented therein--whether Congress has the power to define inchoate conspiracy as an offense against the law of nations, as it has done in 10 U.S.C. § 950t(29). A wholly separate question--which Alex's paper does not seek to answer (see, e.g., footnote 357)--is whether Article III nevertheless prohibits a military, as opposed to civilian, court from trying the offense. As this post explains, there are compelling reasons why Congress should receive less deference in that context.

Military Justice

Should the U.S. Military Receive the Benefit of the Doubt When Investigating Itself for Alleged War Crimes?

The bombing of a Doctors Without Borders hospital in Afghanistan has amplified a long-simmering discussion regarding the ability of the American military to objectively conduct internal investigations into war crimes and, where necessary, to hold individuals accountable.

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