JURIST Contributing Editor Geoffrey S. Corn, Lt. Col. US Army (Ret.), a former Special Assistant to the Judge Advocate General for Law of War Matters and currently a professor at South Texas College of Law, says that no matter how much the military commission system for trying detainees is modified, it will never match the legitimacy of a General Court-Martial…

I write to offer a brief supplement to Professor Paust’s provocative JURIST editorial Court-martial: A Third Option for Trying Al Qaeda and Taliban Detainees (and note that we both trace our roots back to the Army JAG Corps and now find ourselves planted in Houston!).

Like Professor Paust, I also believe that trial by court-martial is a viable alternative to trial by military commission for Guantanamo detainees. In fact, I vividly recall the day that the Department of Defense announced that it would be creating the original military commissions. I had just returned from a meeting in Bonn with our German Bundeswher counterparts to discuss cooperative security efforts in response to the threat of terrorism against U.S. forces in Germany. When my Colonel told me the news, my initial reaction was “why don’t we just try them by court-martial?” I explained to him and others in the office how the UCMJ had always vested General Courts-Martial with jurisdiction over any person who was subject to trial by military tribunal pursuant to the law of war. I also explained that while the question of whether international terrorism could properly be characterized as violations of the laws and customs of war would be complex, the answer would be dispositive to jurisdiction of either tribunal. Why, therefore, would it be in the national interest to create a new tribunal instead of relying on the well established General Court-Martial?

I was told to draft an extensive memorandum addressing these points that my Colonel submitted to The Judge Advocate General of the Army. A reply was quickly received: ‘thanks for the ideas; already considered and rejected.’ I was perplexed. Then President Bush issued Military Order #1 creating the military commissions. That cleared things up quite quickly: the last thing the Administration sought to achieve was a regularly constituted tribunal with meaningful trial procedures, rules of evidence, or appellate process.

Nine years later, much has changed. Judicial and subsequent legislative interventions have substantially enhanced the legitimacy of the military commissions. Indeed, these enhancements prevent me from concurring with Professor Paust that the current commissions are fundamentally invalid. Nonetheless, I continue to believe, as I did from the day the commissions were announced, that trial by General Court-Martial would be a better course of action for any Administration determined to rely on military courts to try these detainees, and I applaud Professor Paust for suggesting this alternative. In support of his suggestion, I offer this one observation.

Professor Paust cites two provisions of the UCMJ as potential sources of jurisdiction over detainees: Article 2(10) and Article 18. Article 18 defines offenses subject to the jurisdiction of General Courts-Martial. The first prong of that article relates back to Article 2 of the UCMJ, which defines those individuals who are “subject to the Code.” This simply means that General Courts-Martial have jurisdiction over any person Congress subjects to the proscriptions of the UCMJ in Article 2. Accordingly, trial pursuant to prong one of Article 18 would be for a violation of the domestic US military code – the UCMJ itself. In addition, the second prong of Article 18 subjects any person who violates the laws and customs of war to trial by General Courts-Martial. This jurisdiction is triggered not for a violation of the UCMJ (U.S. law), but for a violation of international law. Through the second prong of Article 18 Congress has simply provided a forum for adjudicating such violations; the same forum established for adjudicating violations of the domestic military code (the UCMJ).

There is a fundamental and critical distinction, however, between these two grants of jurisdiction. In the first instance, the accused will be tried for violation of U.S. law, and therefore must be subject to that law at the time of the offense. This is why Article 2 of the UCMJ defines who is in fact “subject to the Code.” In the second, because the accused is tried for a violation of international law, there is no requirement that he or she be “subject to the Code” at the time of the offense. Article 2 is therefore the conduit that links an individual to the proscriptive jurisdiction of the UCMJ itself.

Unsurprisingly, Congress has limited individuals “subject to the Code” to individuals with some link to the U.S. military. The most obvious category is members of the regular armed forces. But Article 2 also includes some other interesting categories, such as “persons serving with or accompanying an armed force in the field." Civilian who accompany the U.S. armed forces in the field and provide support have always been subject to the U.S. military code, a tradition traced back to the British Articles of War. When Congress enacted the UCMJ, it continued this tradition through Article 2(10). This category does not, however, provide a court-martial with jurisdiction to try civilians accompanying an opposition armed force. These individuals have no connection with the U.S. armed forces prior to capture, and therefore were not intended to fall within this category. This does not mean Congress is prohibited from extending U.S. law to such individuals for pre-capture misconduct, but that intent must be clear. There is absolutely no indication Article 2(10) was intended to have such reach. Instead, there is ample evidence that only civilians supporting the U.S. armed forces fall into this category. This was reinforced in 2006 when Congress amended the provision to eliminate an implied “declared war” qualifier, a change intended to ensure accountability for civilian contractors, not to provide jurisdiction over enemy civilians.

Does this that individuals associated with enemy forces are immune from court-martial jurisdiction? No. This is where prong two of Article 18 becomes controlling. Pursuant to Article 18, there is a critical condition precedent to the exercise of court-martial (and in my view any military) jurisdiction for pre-captured misconduct of a detainee: the U.S. must allege a violation of the laws and customs of war. This is logical, as there is no issue of the U.S. projecting its law upon individuals not yet connected to the UCMJ. It is international law — law that proscribes the conduct of all participants in armed conflict — that provides the proscriptive jurisdiction applied by the General Court-Martial.

Fidelity to the distinction between the two categories of jurisdiction established by Article 18 is essential to future legitimacy. The UCMJ includes dozens of statutory criminal proscriptions, including offenses it would be absurd to apply to an enemy operative or enemy civilian prior to capture (for example, could such a captive be tried for desertion if he surrenders to U.S. forces?). Congress did not intend those statutory proscriptions to apply to captured personnel prior to capture (although upon capture they are subject to the UCMJ); instead, it merely provided a regularly constituted and legitimate forum for adjudicating allegations of pre-capture war crimes.

I therefore agree
with the outcome of Professor Paust’s calculation, although I question the ingredients. One conclusion is, however, without dispute: no matter how much the military commission is modified, it will never match the legitimacy of a General Court-Martial.

Geoffrey S. Corn is a professor at South Texas College of Law in Houston. He is also a retired LTC from the Army JAG Corps. His last assignment was as Special Assistant to The Judge Advocate General for Law of War Matters.
——–