Military Review Magazine Article: Military Commissions, Past and Future

Military Review Magazine Article: Military Commissions, Past and Future. This article discusses the history of military detention and treatment from the Revolutionary War to the present with a focus on Federal Court decisions and Military justice on the field of battle.

Saturday, March 1, 2003
Sunday, January 30, 2005

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Lieutenant Colonel Jody Prescott, U.S. Army, and Major Joanne Eldridge, U.S. Army Reserve
The detention ofsuspected terrorists has raised questions about how they will be held accountable for their alleged crimes. President George W. Bush authorized the use of military commissions to tly non-U.S. citizens involved in terrorist activities. Lieutenant Colonel Jody Prescott and Major Joanne Eldridge examine the role ofmilitwy commissions ill the U.S. Army's history.
ON 17 JANUARY 1865, Confederate Army Since the Mexican-American War, U.S. military Captain Robert Kennedy was convicted by a and civilian conunanders have faced circumstances military commission of spying and other violations requiring the administration of justice in cases for ofthe law of war "in undertaking to carry on irregu-which courts-martial, authorized by statute or ordi­lar and unlawful warfare.") Kennedy apparently in-nary civilian courts, were inadequate or unavailable. tended to set New York City on fire and was seen Over time, the military commission evolved as a tool in other pmis of the state while in disguise. A mili-that commanders could use in such situations. tary commission sentenced him to hang, and the re-The case of Major John Andre, the British spy viewing authority confmned the sentence. who conspired with Benedict Arnold during the Kennedy's case is not merely of historical inter-Revolutionary War, is sometimes cited as an example est because of the 11 September 2001 terrorist at-ofa military commission. However, the Andre case tacks on New York City; it is pel1inent in light of was actually held before a board of offlcers con-President George W. Bush's Military Order of 13 vened on 29 September 1780 by General George November 2001, which authorizes the use ofmili-Washington to serve as a board ofinquiry, which was tary commissions to try non-U.S. citizens involved not empowered to adjudge a conviction or to deter­in attacks for cel1ain telTorist activities." Significantly, mine a sentence. After interrogating Andre, the U.S. Department ofDefense (DOD) Military Com-board recOimnended to Washington that Andre "be mission Order (MCO) 1, which Secretary of De-considered as a spy from the enemy, and that agree­fense Donald RUl11sfeld issued On 21 March 2002 able to the law and usage of nations, he ought to to implement the Military Order, authorizes line of-suffer death."5 ficers to sit as members ofmilitary commissions or In 1776, the Continental Congress passed a law as members ofreview panels to review convictions making espionage by non-U.S. citizens or nationals ofindividuals tJied by military cOimnissions.3 a capital offense triable by coul1-martial. Similarly, Vv'hat is a military conmlission, and when and why the 1776 Articles of War made giving assistance to is it used rather than a court-mru1ial? Generally, a the enemy and giving intelligence to the enemy capital military conunission is a "cOUl1 convened by lnilitary offenses triable by court-martial. Interestingly, one authority for the trial of persons not usually subject ofAndre's and Amold's alleged accomplices, Joshua to military law but who are charged with violations Hett Smith, was tried by coul1-mal1ial and acquit­of the laws of wru·, and in places subject to military ted." Washington, however, thought furthcr inquiry govennnent or mal1iallaw, for the trial of such per-into Andre's case was unnecessary and ordered sons when chru·ged with violations ofproclrunations, Andre to be hanged.7 ordinances, and domestic civil and criminal law of Under the provisions ofthe 1806 Al1ic1es ofWar, the territory concemed."4 which retaincd coul1-m311ial jurisdiction over spies


and those who assisted or gave intelligence to the enemy, General Andrew Jackson court-martialed ci­vilians accused ofhostile acts. In March 181 S, while New Orleans was still under martial law, Louis Louillier was tried by a general court-martial for a number of alleged offenses, including spying.8 The court-martial found it only had jurisdiction over the spying offense, ofwhich Louillier was acquitted.9 In 1818, Jackson tried two British citizens by general courts-martial in Florida for espionage and for pro­viding assistance to hostile Indians. Both were con­victed and executed. lo
The Mexican-American War
to Reconstruction

The fIrst documented use of a proceeding called a military commission by the U.S. Anny occurred in Mexico in 1847. The U. S. Anny occupied large expanses ofMexican territory that lacked the civil­ianjudicial infrastructure to adjudicate cases not cov­ered by the Articles of War. II That year, General WinfIe1d Scott issued General Order (00) 20, which allowed enumerated offenses committed by Mex)­cans and other civilians outside the jurisdiction ofthe 1806 Articles ofWar to be tried before military coni­missions. Military commissions were also givenju­risdiction to try U.S. Army personnel for offenses not covered by the Articles of War. As many as 29 military commissions were held, SOme ofwhich tried multiple defendants. 12
Although sometimes cited as examples ofmilitary commissions, the trials of members of the Saint Patrick's Battalion, a unit of primarily ethnic Irish soldiers who fought for the Mexicans, were actu­ally courts-martial for desertion from the U.S. Anny.13 Scott also ordered the creation of "coun­cils ofwar," similar to military commissions, which tried violations of the law of war. Few cases were tried in this fashion, however, and such councils were not used again. 14
The diffIculties U.S. commanders faced in the Mexican-American War with regard to administer­ing justice in the fonner Mexican areas for which they were responsible pale in comparison with the challenges confronting Union commanders during the Civil War. As the war progressed, the Union states were under limited martial law. Some Union states, like Kansas, were under greater degrees of martial law at various times. Stricter martial law of­ten applied to border states like Kentucky and Mis­souri, where populations with Confederate sympa­thies provided support for Confederate irregulars. As the Union occupied ever more Confederate territory, Union commanders faced hostile populations in the area of operations, and strong, sometimes violent, antiwar sentiment in the rear.16 From early in the Civil War, the military commission proved useful to
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Union commanders. By war's end, thousands of cases had been tried.17
Although Union forces were used for various law­enforcement purposes during the war, the autholity for use ofmilitary commissions was unclear. Statu­tory recognition of military commissions was sparse during the early part ofthe Civil War, and the com­missions were not included in the Articles ofWar. 19 Union forces, under the command of Major Gen­eral John Fremont, began using military commissions in Missouri as early as September 1861.20 Fremont's successor, Major General Henry Halleck, had served as Secretary of State in the military government of California during the Mexican-American War, and he was familiar with the use of military cOlnmis­sions.21 On 1 January 1862, Halleck issued a gen­eral order pennitting and detailing the use of such commissions. Although military commissions were
President Lincoln issued a proclamation
authorizing the use ofmilitmy commissions to
ny "rebels, insurgents, and aUpersons 'guilty of
any disloyal practice affording aid and comf011
to rebels. '" Lincoln suspended the writ of
habeas corpus for individuals convicted
and sentenced by courts-martial or militmy
commissions. Congress modified Lincoln's
proclamation [in 1863/.

not required to use the same procedures as courts­martial, the general order directed that military com­missions be "ordered by the same authority, be con­stituted in a similar manner, and their proceedings be conducted according to the same general rules as courts-martial, in order to prevent abuses which might otherwise arise."22
Halleck's order tracks closely with Article 36 of the UnifOlID Code ofMilitary Justice (UCMJ), which allows the President to prescribe regulations "which shall, so far as he considers practicable, apply the principles of law and the rules of evidence gener­ally recognized in the trial of criminal cases in the United States district courts" to cases tried "in courts-martial, military corrunissions and other lnili­tary tribunals, and procedures for courts of in­quiry. "23 Other Union commanders followed Halleck's lead and issued their own general orders permitting the use ofmilitary corrunissiollS.24
In March and June 1862, after militmy cOlnmis­sion convictions from Missouri were forwarded to the War Department for review, U.S. Anny Judge Advocate Major John Lee, advised the Secretary of War that there was no legal basis for military commission trials of civilians within tbe United States.2) Halleck assumed the post of general-in­


chief of the AImy in July 1862, and when Congress created the new position ofjudge advocate general, Halleck did not recommend Lee for the position.26 Instead, Colonel John [Joseph?] Holt was appointed judge advocate general. In September 1862, Holt
Military commissions were a prominent feature ofthe u.s. Army~administration of justice in the South during Reconstruction and were specifically authorized by Congress . ... Although some civilians were still tried for o.fftnses that had occurred during the Civil War, military commissions more often tried civilians for violations ofcivilian law in areas where civil courts were notfunctioning or were perceived by commanders as not administer­ing justice impartially.
advised the secretary of war that the use of mili­t:ary commissions was not only suited to the exigen­cies of the times, but that "long and unintenuptc::d usage made them part and parcel of military com­mon law."27
On 24 September 1862, President Abraham Lin­coln issued a proclamation authorizing the use ofmili­tary commissions to try "rebels, insurgents, and all persons 'guilty ofany disloyal practice affording aid and comfort to rebels."'28 Lincoln suspended the writ of habeas corpus for individuals convicted and sen­tenced by courts-martial or military commissions. 29 Congress modified Lincoln's proclamation with the Habeas Corpus Act of 1863. Persons imprisoned un­der the terms of the act were entitled to be dis­Charged if a civilian grand jury did not indict them or if charges pending against them had not been pre­sented to the grand jury. Militmy authorities were required to provide civilian courts with lists ofsuch persons. 30

In October 1864, Union military personnel ar­rested Lambdin Milligan in Indiana on charges that included conspiracy against the U.S. Government and disloyal practices. Milligan belonged to a group with strong Southem sympathies, and he agitated publicly against the war. A military commission in Indiana convicted and sentenced him to death. Meanwhile, the appropriate grand jury convened, deliberated, and adjourned without returning an in­dictment against Milligan. The U.S. Supreme Court eventually decided Milligan's appeal for a writ of habeas corpus in 1866. The Court concluded that it had jurisdiction to hear the case and that under the Habeas Corpus Act of 1863, Milligan should have been released. Further, the Court found that the mili­tary commission was without jurisdiction to try a ci­vilian citizen of a loyal state (Indiana) when the ci­
vilian courts were still functioning, when the state
had not been a theater of war, and when the state
had never been under military dominion. The dissent
in this 5-4 decision believed that conditions ofmili­
tary exigency did in fact exist in Indiana at the time
Milligan was tried, but that the militmy commission
was without jurisdiction because it had not been spe­
cifically authorized by Congress to try such cases.3!
After ills release, Milligan brought a civil suit against
the commander who ordered him arrested and the
members of the militmy commission that had tried The jury found the militalY personnel liable for
false imprisonment, but awarded Milligan only nomi­
nal damages.32
After the war, militmy cotmnissions tried hundreds
of cases in different areas of the country.33 The two
best known are the trials of the conspirators to as­
sassinate Lincoln and the trial of Captain Heruy
Wirz, warden of the Andersonville, Georgia, plisoner
of war camp.34 The U.S. Supreme Court deter­
mined that a state of hostilities existed between the
U.S. and Confederate states (except Texas) until the presidential proclamation of 2 April 1866 and be­tween the United States and Texas until 20 August 1866.35 The U.S. Supreme Court eventually upheld military commission convictions that occurred in these states during the respective time periods. 36 Before these decisions, however, at least two U.S. district.courts in northern states found that military commission jurisdiction ceased when martial law ended in the respective southern states. Accordingly, these courts ordered the release of prisoners who had been tried and convicted after civil goverrunent had been reestablished.37

Military commissions were a prominent feature of the U.S. Army's administration of justice in the South during Reconstruction and were specifically authorized by Congress for use at tills time.3H Al­though some civilians were still tried for offenses that had occurred during the Civil War, military conm1is­sions more often tried civilians for violations of ci­vilian law in m'eas where civil courts were not func­tioning or were perceived by commanders as not administering justice impmiially. As during the Civil War, provost coulis were used in vmious areas to adjudicate petty offenses. While the procedures of the military commissions had become fairly unifonn by this time, the procedures before the provost courts often varied from command to command.39 There were approximately 200 trials before military commissions, many of which involved mUltiple defendants.4o For example, between March and September 1867, 216 individuals were tried before military cOJ1llnissions in North and South Carolina.4! As the southern states gained readmission to the Union and representation in Congress, martial law was terminated within them, and all military com-
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missions ceased to oper­ate as ofJuly 1870.42
The Indian wars to World War II

u.s. Anny command­ers occasionally used military commissions during conflicts with Na­tive American tribes on the western frontier. In autumn 1862, a military commission in Minne­sota tried 425 members of the Dakota tribe for offenses resulting from a bloody uprising that Au­guSt.43 Of that number, 321 were convicted. In taking action on the cases after his review, LlncoIn eventually ap­proved the death sen­tence in 38 of the 303 cases in which it had been adjudged 44 In 1872, a military commission was used to try Modoc tribesmen for the mur­der of General Edward Canby and others.45
Military commissions were also employed dur-
An officer from the 633d Medical Clearing Station pins.
:. . 4-inch white aiming marks to the chests of German ~\,.";::, soldiers captured in U.S. uniforms and convicted of" W~~ spying, Henri-Chapelie, Belgium, 2~ ~ecember 1944..
"("'i(~'~2" ;.~:;.:)'4i~:A.·#r:·~· ':'y,' .~~... "'"..~. ~..
Between October 1944 and May 1945, military commissions tried
approximately 67 individuals, and at least 32 were executed Among these
were 18 German soldiers captured while wearing US. uniforms behind
Us. lines during the Battle ofthe Bulge. They were convicted ofspying
and executed In the period between the end ofthe fighting ill Europe and
General Dwight D. Eisenhower ~25 August 1945 proclamation of
a military government in Germany (with a system ofmilitary courts),
military commissions continued to try individuals.

ing the 1898 Spanish-American War. Although mili­tary govennnents using the local court systems of Cuba and Puerto Rico were set up after the U.S. occupation ofthose islands, military commissions had jurisdiction to try cases until the peace treaty be­tween Spain and the United States was ratified on 1 April 1899.46 After the treaty became effective, the U.S. military government in Puelto Rico was re­placed by a provisional government, which was it­self replaced by a civilian government in 1900.47 The situation in the Philippines might have been differ­ent, given the native insurgency, but the Philippines likewise had a civilian government by 1902.48
During the labor strife and civilian unrest in the United States in the early 1900s, some governors in­stituted martial laws, and several states used mili­tary commissions to try civilians charged with vio­lations of martial law. In 1912 and 1913, state military commissions in West Virginia tried at least seven in­dividuals for violations of martial law imposed by the state governor.49 In Nebraska in 1922, several de­fendants were tried before a state military commis­sion during a period of martial law. They were con­victed and sentenced to prison tenns. The U.S.
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District Court for Nebraska, in denying the prison­ers' applications for writs of habeas corpus, held that although the state courts had remained open during this time and the National Guard cornrnander could have sent their cases to these courts, he was not required to do so. Accordingly, the cOUli concluded . that the sentences lawfully adjudged during the pe­riod of martial law remained valid even after mar­tiallaw was lifted. 50 To the extent that these cases
. relied on the declaration of martial law as being de­tenninative as to the propriety of holding military commissions, the U.S. Supreme Court has cast doubt as to whether these cases are still good law. 51

World War II
The vast geographical scope of U.S. military op­erations during and after World War II presented commanders with nwnerous and complex challenges regarding the administration of justice. During the war, military commissions were used at home and abroad to try so-called "unlawful combatants." Af­ter the war, military commissions tied nUlnerous Axis war criminals and, as the United States assumed the duties of an occupying power, exercised jurisdiction


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over even ordinary cases involving local civilians. Significantly, World War II and the immediate post­war era were the last times U.S. Anned Forces conducted military commissions. Such commissions predate the UCMJ and the profound evolution of the present military justice system. Of note is that mili­tary commissions did not conduct the famous war crimes trials held after World War II. Instead, in­temational military tribunals conducted the Nurem­berg and Tokyo trials.52
In the Quirin case in 1942, the U.S. Supreme Court upheld the use of military commissions to try persons in the United States for offenses against the law of war and the Articles of War.53 Quirin was one of eight men transported to the United States by German submarine in 1942. The men landed in New York and Florida wearing German military uni­fOlms, which they buried, and carrying explosives. Their instructions from the German High Command were to destroy American War facilities and indus­tries. The FBI captured all eight, and they were tried Defore a military commission appointed by President Franklin D. Roosevelt on 2 July 1942. During the proceedings, the defendants appealed to the U.S. Supreme Court, which found that the trial ofthe men (seven Gennan citizens and one American) by mili­tary commission without a jury was legal. The de­cision was based on the men's status as unlawful combatants, saboteurs, who were not entitled to pris­oner of war statuS.54 Later in the war, on the basis of this decision, a federal appeals court found the military commission trial of a U.S. citizen in the em­ploy of the Third Reich also to be proper. The citi­zen had been landed on the coast of Maine by a German submarine in 1944.55

Within hours of the attack on Pearl Harbor on 7 December 1941, the civilian territorial governor sus­pended the writ of habeas corpus and placed the territory under martial law.56 The commander of the Military Department of Hawaii issued GO 4, which set up ajudicial system composed of military com­missions and provost courts to tty cases. The civil courts reopened in January 1942 to conduct their nor­mal business, but as agents ofthe military governor and under certain restrictions to their respective ju­risdictions. For example, civil courts could not hear criminal cases or empanel grand or petit juries.57
In March 1943, by proclamation ofthe territorial governor, the civilian government resumed nearly all ofits prewar functions. However, GO 2 allowed lnili­tary cOlmnissions to retain jurisdiction over cases arising from a "violation by a civilian of the rules, regulations, proclamations, or orders ofthe military authorities, or of the laws of war."58 Although the privilege ofhabeas corpus was restored in 1943, mili­tary rule in Hawaii continued for three more years.
The quality ofthe administration ofjustice under
martial law was sharply criticized by U.S. Govern­ment investigations and reports. This was particu­larly true of the provost court system.59 When COn­victed prisoners brought petitions for writs of habeas corpus before the U.S. Supreme Court, the prison­ers were released immediately. The Supreme Court was unimpressed with the rationale for the use of the martial law court system rather than the civil courts, holding that civilians in Hawaii were entitled to the constitutional right to fair trial and that mar­tial law was not intended to supersede civilian courtS.60
Japanese war criminals, including commanders, soldiers, and military judicial officials, who had con­demned Allied service members after unfair trials, were tried before Allied military courts in the China and Pacific Theaters. U.S. militaIy commissions tried cases in occupied Japan and in liberated allied areas. 61
Perhaps the best-known military commission trial in the Far East was that of General Tomoyuki Yamashita, fonner commander of Japanese forces in the Philippines. The commission was composed of five general officers and was convened by General Douglas MacArthur.62 Yamashita was charged with unlawful disregard ofand failure to discharge his duty as commander to control the members of his com­mand from committing brutal atrocities in the Phil­ippines against civilians and prisoners of war. His trial began on 29 October 1945 and concluded on 7 December 1945. The lnilitary cOlmnission foundhirn guilty and sentenced him to death by hanging. Be­cause his trial was held under U.S. auspices in the Philippines, a U.S. territory until 1946, Yamashita was able to appeal to the U.S. Supreme Court, ar­guing that the military commission lackedjurisdic­tion to try him. The Supreme Court disagreed, find­ing that the Articles of War granted jurisdiction to both general courts-martial and to military COlmniS­sions and that the Geneva Conventions of 1929 did not require one form of trial over the other.63 Yamashita's appeal was denied and he was hanged. International law now requires that prisoners ofwar receive the same kind of trial using the same rules by which service members of the detaining state are tried. 64 .

In 1945, a Gennan national named Eisentrager and 20 other Gennans were convicted by a military commission in China on charges that they had pro­vided intelligence infonnation to the Japanese after the Third Reich surrendered. After the prisoners were repatriated to occupied Gennany to serve their sentences, they petitioned for a writ of habeas cor­pus in U.S. District Comt, alleging that their trial and imprisonment violated the U.S. Constitution and the Geneva Conventions relative to the treatment ofpris­oners of war. Their appeal eventually reached the
U.S. Supreme Court. The Court held that enemy
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prisoners of war, captured and tried outside the
United States by military commissions for law ofwar
offenses committed outside the United States and
serving their sentences outside the United States, had
no right to petition for a writ of habeas corpus in
US. courts. The Court also rejected the petitioners'
claims ofprocedural irregularities under the Geneva
Conventions of 1929, concluding that the military
commission that tried them had proper jurisdiction.65
The U.S. Army began using military commissions
in the European Theater as early as October 1944.
Army Group cOllunanders "were authorized to ap­
point military commissions for the trial ofpersons not
subject to the [Articles of War] who were charged
with espionage or with violations ofthe law of war
that threatened or impaired the security or effective­
ness of U.S. forces."66 Military commissions were
required to have at least three officers, and defen­
dants had the right to counsel. The commissions
were not bound by the evidentiary rules for courts­
martial or by the maximum punishments authorized
under the Articles of War.67
Between October 1944 and May 1945, military
commissions tried approximately 67 individuals, and
at least 32 were executed.68 Among these were 18
Gennan soldiers captured while wearing U.S. uni­
fonns behind US. lines during the Battle of the
Bulge. They were convicted of spying and ex­

In the period between the end of the fighting in Europe and General Dwight D. Eisenhower's 25 August 1945 proclamation ofa military government in Gennany (with a system ofmilitary courts), mili­tary commissions continued to try individuals. Even after the proclamation, trials by military commission continued for a short time.70 The military govern­ment in occupied Gennany gave way to a civilian occupation government in 1949, and the civilian oc­cupation govemment ended (except for Berlin) in 1953.71 In the Mediterranean Theater, as in the China Theater, certain US. allies allowed military commissions to try alleged Axis war criminals on their soil for a number ofyears after the fighting had stopped, even though by then these allies had recon­stituted their judicial systems.72

Contemporary Litigation
The adjudication of cases dealing with the juris­diction ofa military cOlmnission actually began dur­ing the Civil War. As an alleged Lincoln Assassina­tion conspirator, Dr. Samuel Mudd was tried in Washington, D.C., by a military commission. Mudd was a citizen of Maryland, a border state, and had not been in the military. At the time of his trial, the civil courts in Washington and Maryland were

open.Mudd was convicted and sentenced to a tenn of imprisonment. In 1866, after the Milligan
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charged with disregard ofandfailure to discharge his duty as commander to control the members ofhis command from committing brutal atrocities in the Philippines against civil­ians and prisoners ofwar. ... Because his trial was held under U.S. auspices in the Philip­pines, a U.S. territory until 1946, Yamashita was able to appeal to the U.S. Supreme Court, arguing that the militalY commission lacked jurisdiction to try him. The Supreme Court disagreed.

decision, Mudd petitioned for a writ of habeas cor­pus in US. District Court. Finding Milligan inap­plicable, the court denied the petition. The court held that Lincoln was "assassinated not from private ani­mosity nor any other reason than a desire to impair the effectiveness of military operations and enable the rebellion to establish itself into a govenunent. It was not Mr. Lincoln that was assassinated, but the commander-in-chiefofthe Anny for military rea­sons."74 Mudd was subsequently pardoned for his humanitarian efforts in prison during a yellow fever epidemic. 75
Seeking to clear his grandfather'S name, Mudd's grandson brought suit against the U.S, Govenunent in US. District Court. On 14 March 2001, the court found for the U.S. Government, first noting that the list of types ofunlawful combatants set out in Quirin that could be tried before military commissions (saboteurs, secret messengers, spies, belligerents not in unifonn) was not exhaustive. Further, the court

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found that nationality and whether one was work­ing under the direction of enemy forces was not to be determinative. Instead, the court found "[r]eading Milligan and Quirin together ... , that if Dr. Samuel Mudd was' charged with a law of war vio­lation, it was permissible for him to be tried before a military commission even though he was a u.s. and Maryland citizen and the civilian courts were open at the time ofhis trial."76 The court found that the charges did allege such a violation, and the com­mission therefore had jurisdiction. The govern­ment's decision to not disturb Mudd's trial verdict was therefore upheld. 77 On 8 November 2002, the

U.S. Court ofAppeals for the D.C. Circuit rejected the Mudd family's appeal, finding that Mudd, as a civilian, had no standing under the law which allows military members to seek expungement ofmilitary convi cti ons. 78
In a more recent case, a group calling itself the

"Coalition of Clergy, Lawyers and Professors"
brought suit in U.S. District Court seeking a writ of
habeas corpus for detainees being held at Guan­
tanamo Naval Air Station in Cuba. U.S. forces in
Afghanistan had captured the detainees. On 21 Feb­
ruary 2002, the court dismissed the petition, finding
that the petitioners lacked legal standing, the court
did not have jurisdiction to hear the petitioners'
claims, and that no federal court would have juris­
diction over their claims. The court relied primarily
on the holding of the U.S. Supreme Court in
Eisentrager, noting that the petitioners had mistak­
enly characterized the naval base at Guantanamo
Bay as part of the United States. The legal status
of Guantanamo Bay is governed by a 1903 lease
agreement between Cuba and the United States that
gives the United States complete jurisdiction and con­
trol over the specified areas, but Cuba retains ulti­
mate sovereignty over the leased lands and waters.
Therefore, the court concluded that sovereignty over
Guantanamo Bay remained with Cuba and not the
United States.79
On 1 August 2002, a federal district court in Washington, D.C., rejected a lawsuit brought on be­halfofKuwaiti, British, and Australian detainees at Guantanamo. The detainees sought to compel the government to hold hearings on their cases or trans­fer them to the custody oftheir respective countries. The district court ruled that the detainees were out­side the United States, and therefore without any constitutional rights ofaccess to the U.S. judicial sys­ The U.S. Court of Appeals for the District of Colwnbia affirmed the .district court's decision on 11 March 2003.81 Interestingly, on 8 November 2002, in a suit brought by the mother of a Guantanamo detainee, a British court held that keeping detainees in an area under "exclusive" U.S. control without recourse to a court to challenge their detention ap­
peared to violate both British and intemationallaw.
The three-judge panel concluded, however, that it had no jurisdiction over the case.82
The Uniform Code
of Military Justice

In 1950, the UCMJ replaced the old Articles of War and Articles for the Government ofthe Navy.83 The UCMJ incorporated substantial reforms that gave those subject to the UCMJ greater rights and standardized the practice ofcowts-martial across the Armed Forces. In giving effect to the statutory pro­visions of the UCMJ, the preamble to the Manual for Courts-Martial (MCM) provides that the sources ofmilitary jurisdiction are the Constitution and intemationallaw, including the law ofwar.84 Fur­ther, the preamble recognizcs four meanS by which commanders apply military jurisdiction: courts-mar­tial for trial ofoffenses against military law as well as general cowts-martial for the trial ofpersons sub­ject to trial by military tribunal under the laws of war; military commissions and provost courts for the trial of cases within those respective jurisdictions; courts ofinquiry; and nonjudicial punishment. 85
The UCMJ contains two articles (18 and 21) that specifically address the jurisdiction ofmilitary tribu­nals and commissions.86 Article 18 provides that the jurisdiction ofgeneral courts-martial includes the au­thority to try persons for law of war violations by military tribunal and impose any punishment penmt­ted by the law of war.87 Article 21 provides that the provisions ofthe UCMJ "conferring jurisdiction do not deprive military commissions, provost courts, or other military tribunals ofconcurrent jurisdiction."88 The UCMJ also contains three other references to the law of war: Article 104 (aiding the enemy), Ar­ticle 106 (spies), and Article 106a (espionage). These provisions prohibit conduct by "any person," a broader definition than other code provisions, which prohibit conduct by "any person subject to the Code" and permit trials by general court-martial or military cOlrumssion.89
With regard to the procedure to be used by mili­tary cOl1llmssions, the MCM provides that "[s]ubject to any applicable rule ofinternational law or to any regulations prescribed by the President or other com­petent authority, military commissions and provost courts shall be guided by the appropriate principles of law and rules of procedures and evidence pre­scribed for courts martial."9o In his Military Order, Bush specifically found "that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence gener­ally recognized in the trial of criminal cases in the [U.S.] district COurtS."91
In addition to extensive roles for judge advocates

. as presiding officers, prosecutors, and defense coun­sel, DOD MCO 1 provides the potential for signifi­cant roles for all military officers. Y2 Each cOlmnis­
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sion shall be composed of at least three but not more
than seven members, as well as one or two alter­
nate members, appointed by the secretary ofdefense
or his designee (the appointing authority). Members
and altemates will be commissioned officers from
all the armed services, including Reserve officers on
active duty, National Guard officers on active duty,
and even retired officers recalled to active duty. Al­
though DOD MCO 1 provides no rank or grade re­
quirements, the appointing authority appoints mem­
bers "determined to be competent to perform the
duties involved."93 The length of such appointment
is not specified.
DOD MCO 1 provides detailed procedures ap­

plicable for each accused tried before a military com­
mission. Each accused will be represented by a mili­
tary defense counsel detailed to his case at no
expense to him. The accused may request a par­
ticular military defense counsel (subject to reason­
able availability) and may be represented by a civil­
ian attorney at no expense to the United States
(-subjsct to certain requirements).94 The accused
may not discharge his military counseP5 Other rights
may be summarized as follows:
D Right to a copy of the charges in a language

the accused understands, as well as the substance
of the charges, the proceedings, and documentary
D Presumption of innocence until proven guilty,

and guilt must be proven beyond a reasonable doubt.
D Detailed defense counsel must be made avail­

able in advance oftrial to prepare a defense.
D Access to evidence the prosecution intends to

use as well as access to exculpatory evidence known
to the prosecution.
D Right to remain silent at trial, with no adverse

inference from the accused's decision not to testifY;
or to testify, subj ect to cross-examination.
D Witnesses and documents for the accused's de­

fense, including investigative or other resources re­
quired for a full and fair trial.
D Right to present evidence at trial and cross-ex­amine prosecution witnesses.
D Right to be present at proceedings, unless the accused engages in disruptive conduct, except for those portions closed to protect classified infonna­tion and other national security interests.
D Access to sentencing evidence. D Right to make a statement and submit evidence during sentenCing proceedings. D Trial open to the public unless closed by the presiding officer. D Right not to be tried again by any commission on the same charge.95
The accused shall also have the right to submit a plea agreement to the appOinting authority.96 Unlike in a court-mmtial, however, the accused's pleading guilty before a n1ilitmy commission gets him precisely
MILITARY REVIEW 0 March -April 2003

Afederal. district court ill Washington,
D.C, rejected a kzwsuit brought on behalf of. ..
detainees at Guantananw. The detainees
sought to compel the government to hold
hearings 011 their cases or transfer them to the
custody oftheir respective countries. 17le district
court ruled that the detainee!! were outside the
United States, and therifore without allY
constitutional rights ofaccess to the U.S.
judicial system.

that for which he bargained with the appointing au­thority rather than the lesser of either the sentence limitation in his pre-trial agreement or the sentence adjudged at court-martial.97 The standard for admis­sibility of evidence is that evidence, which in the OPlll­ion of the presiding officer would have probative value to a reasonable person.98
Before voting for a finding of guilty, conunission members must be convinced beyond a reasonable doubt that an accused is guilty of the offense based on the evidence admitted at trial. A fmding of guilty requires a two-thirds majority of cOrrmlission mem­bers. A sentence also requires a two-thirds majority

of members, except for a sentence of death, which must be unanimous. A sentence may include death; confmement for life or for a lesser period; payment ofrestitution or a fme; or such other lawful punish­ment as the commission deems appropriate. To ad­judge a sentence of death, the commission must be composed of seven members.99 Military officers have an important role to play in the post-trial phase of military commissions. The secretary of defense shall designate a review panel consisting of three military officers, which may include civilians com­missioned in compliance with USC requirements. 100 The review panel must include at least one mem­ber who has experience as a judge. The panel is charged with reviewing the record of the commis­sion procecdings and written submissions by the prosecution and defense. The panel must either for­ward the case to the secretary of defense with a recommended disposition or return the case to the appointing authority for additional proceedings where there has been a material error of law. The secre­tary of defense then reviews the case and forwards it to the president for review and fmal decision. The president can delegate the final decision to the sec­retary of defense if the president so desires. 101 The order sets forth no other avenues of judicial review or appellate relief, but this does not mean that the
U.S. Supreme Court cannot review the case. 102

Military commissions have been used extensively in the course ofAmerican history during periods of martial law, occupation, and war. Unfortunately, this flexibility and usefulness has led to some confusion as to the rules and procedures that should be ap­plied at military commissions held under military or­der and their propriety under current domestic and international law. Some have criticized the use of military cOlmmssions as undermining the rule of law domestically and as not being viewed as credible by the international cOlmnunity.103 Others criticize the use of a less stringent standard for the admissibility ofevidence before the military corrumssion as com­pared to ordinary U.S. criminal courts and the use of an appeal process that stays within the Depart­ment of Defense. 104 Significantly, many critics do not seem to distinguish clearly between the differ­ent kinds of lmlitary cOlmmssions and the various le­gal regimes that would apply to each respectively. A military cOlmmssion sitting in the United States and trying U.S. citizens and residents under martial law, such as in Milligan, would be quite different from
an occupation military commission, such as existed in post-war Germany or Japan. Both would be dif­ferent from a law of war mili tary commission sit­ting overseas and trying unlawful combatants, as in
The president's authority to create a law of war military commission is clear under national and in­temationallaw. 105 As specified in DOD MCO 1, the composition and procedures of the military cormms­sions and review panels substantively comply with internationally accepted standards of due process. 106 Further, trials before military cOlmnissions may ac­tually foster the rule of law and the administration of substantive justice. Military cormmssions will be allowed to consider probative evidence that ordinary
U.S. criminal courts cannot, sensitive intelligence. sources can be protected, and the issues of trial se­curity are much less pronounced. 107
On 28 February 2003, the Department of Defense General Counsel's Office released for public Com­ment a draft of the Military Commission Instruction (Draft MCI) that set out the Climes and the elements of those crimes for which certain individuals could be tried before a military cOlmnission. J08 The crimes enumerated in the Draft MCI are "violations of the law of armed conflict or offenses that, consistent with that body of law, are triable by military com­mission."109 The Draft MCI includes such crimes as the "Willful Killing of Protected Persons,"llo "Employing Poison or Analogous Weapons,"lll "Rape,"112 and "Terrorism."113 The Draft MCI does not include crimes against humanity or genocide as triable offenses and it does not specifically set out defenses to the enumerated offenses, but it does note that "[d]efenses potentially available to an accused under the law of armed conflict, such as self-de­fense, mistake offact, and duress, may be applicable in certain trials by military cOlmmssion."114
It is crucial that officers detailed to these bodies perfonn their judicial functions with the utmost care and understanding of their positions. These trials must satisfy domestic and international public opin­ion that justice be served. Further, these trials could constitute precedent for what the United States be­lieves is the minimum due process required in trials ofunlawful combatants for violations against the law of war and international law. Other nations or nons tate actors might then hold trials of captured
U.S. soldiers or other U.S. Government employees using similar tribunals and procedures. MR

1. William ,{\,i!1throp. Military Law and Precedents, 2d ed (Washington, DC: u.s.

~t(f9:ztnt Pnnlong Office [GPOI. 1920).767·70.784: Ex parte Quirin.1 al. 317 U.S. 1.
~ilitary Order of 13 November 2001, "Detention, Treatment and Trial of Certain ~tXl'if'tizens in the War Against Terrorism." sec. 1(e). 66 F.R. 57833 (16 November

U.S. Department of Defense (DOD) Military Commission Order (MCO) 1. par. 4.A.(3) (21 March 2002).

Edward M. Byme, MililBI)' Law (Annapolis, MD: Navallnstitule Press. 1981). 752.

Winthrop. 518.

Ibid. 765: app. X. American Artides of War of 1776. 18 and 19. 967: Ibid.. 102 note 21.

7. In a letter informing Major John Andre's commander of his decision to execute Andre, Washington noted thai he could have summarily executed Andre rather than even convene a board of inquiry to look into his case (Robert Hatch. Major John Andre: A
Gattanl in Spy's Clolhing(Boston~ Houghton Mfflin Co .. 19861. 262).
8. Winthrop. app. XII. American Articles of War of 1806. 56 and 57. 981: Ibid .• 101. sec. 2. 985. Articles 104 (aiding the enemy). 106 (spies). and 106a (espionage) of the
Uniform Code of Military Justice (UCMJ), enacted in 1950, track these early Articles of

War proviSions dosely [10 USC. secs. 904. 906. 906a (20021: Winthrop. 822.
John Spencer Bassett. The Life of Andrew Jackson (New York: Macmillan. 1928).

Roben V. Rimini. Andrew Jackson and His Indian Wars (New York: Viking, 2001),

March -April 2003 0 MILITARY REVIEW




154-56; Winthrop, 102, 832.
11. K. Jack Bauer, The Mexican War (New 'rbrk Macmillan, 1974), 253, 326-27.
12. Winthrop, 832,.quoting General Order (GO) 20, 19 February 1847. Headquar­
1e?30f~~:.:;n~' ;:;:~tr:"S~~~;.c,:;t~~~t~~~r~a¥h~ ra~~?~~~~k'S BaNalion in the U.S.-Mexican IMir (Norman, OK: University of Oklahoma Press, 1989), 92-112.
Winthrop, 832-33.

tbid., 829, 826, 824-27; Mark E. Neely, J" The Fale of Uberly: Abraham Lincoln and Civit Liberiies (New York: Oxlond University Press, 1991),46-47, 168.

1~: U!i~~~2: ~~~~~IY, 168.
18, Neely, 21, 30, 32-35.
19. "The President shall appoint a Judge Advocate General to whose office shall be relumed, for revision. the records and proceedings of all courts-martial and military com­missions" (Carol Chomsky, ~The United States-Dakota War Trials: A Study in Military
Injuslice," 43 Slanford Law Review (1990): 66, quoting Act of 17 July 1862, chap. 36, sec. 5, 12 stat 597, 598). 20, Neely, 41-42,
The Army Lawyer.' A Hislory of/he Judge Advocale General's Corps, 1775-1975 (Washington, DC: GPO, 1975),46.

Chomsky, 56, note 269, quoting GO 1, Headquarters, Department of the Missouri, 1 January 1862.

10 USC, sec. 936 (2002),
24, Winthrop, 833.

25. Chomsky, 66, notes 336-37, quotin9 two letters from Judge Advocate John F. lee
to Secretary of War E.M. Stanton.
26. The Army LallYer, 47.
27, Chomsky, 66, note 338, quoting letterfrom Judge Advocate General John [Joseph?) Holt to Secretary of War Stanton.
28. Neely, quoting Uncoln's Proclamation of 24 September 1862, citation omitted. Ap­parentlyanticipating Unco!n's proclamation, Stanton issued an order on 8 August 1862 that such persons were liable to trial by military commission.
29, Winthrop, 829.
Ex parte Milligan, 71 US (4 Wall) 2, 107-08 (1866).

Ibid., 118-31,141.

Milligan v. Hovey. 17 F. Cas. 380, 380-83 (D.C. Ind., 1871).

Neely, 176.

Winthrop, 839, note 5.

Carver's Cases, 16 Ct. CI. 361,383 (U,S, CL CI" 1880), citalion omitted.
36, Carver v. U.S., 111 U.S. 609 (1884).
37, U.S .. v. CommandantofFon Delaware, 25 F. Cas. 590, 591 (D.C. Del" 1866); In

re Egan, 8 F. Cas. 367, 368 (Cir. C. N. D. NY, 1866).
38, Winthrop, 848,

39. James E. Sefton, The United Stales Anny and ReconslfUction (Baton ROJge, LA:

Louisiana State University Press, 1967), 30-32. -.
40, Winthrop, 853.

Sefton, 146.

Winthrop, 851.

Medawakanlon and Wahpakoola Bands of Sioux Indians v. U.S., 57 Ct. CI. 357, 384 (U.S. Ct. CI., 1922).

Chomsky, 33, 88,

45. Robert M. Utley, Frontier Regulars: The United Stales Anny and the Indian. 1866~
1890(Lincoln, NE: University of Nebraska Press, 1984),206-07,

46. Ochoa v. Hernandez y Morales, 230 U.S. 139, 145-47 (1913); Santiago v. Nogueras, 214 U.S, 260, 263 (1909); ex parte Oniz, 100 F. 955, 963 (D.C. Minn" 1900).
The petitioner was tried for the murder of a U.S. soldier by a military commission two weeks before exchange of ratifications.
47. Ochoa, 230 U.S. at 147.
48, Kepner v U.S., 195 U.S. 100 (1904).

Ex parte Jones, 71 WVa., 567 (Sup, Ct. Appeals, 1913); State ex rei. Mays, 71 W.Va. 519 (Sup. Ct Appeals, 1912).

U.S. ex rei., Seymourv. Fische" 280 F. 208, 209-12 (D.C. Neb" 1941).

Duncan v. Kahanamoku, 327 U.S. 304, 322, note 18 (1946).

Flick v. Johnson, 174 F.2d 983, 986 (D.C. Clr" 1949); Viscount Maughm, UNO,
and War Crimes (London: John Murray, 1951),87-101,

Quirin, 317 U.S. 1.

Ibid" 23-24, 42.

Colepaugh v. Looney. 235 F.2d 429 (10th Cir" 1956), citations omitted.

William H. Rehnquist, Alilhe laws But One: Civil Uberiies in Wanime (New York:
Knopf, 1998, 212.

Ex parte Duncan, 146 F,2d 576 (9th Cir., 1944), 579.

Ibid" 581-82.
59, Harry N. Scheiber and Jane L. Scheiber, "Bayonets in Paradise: A Half-Century

Retrospect on Martial Law in Hawai'i. 1941~1946," 19 Hawaii Law Review (Fall 1997): 477, 509~16. Initially, the military commission that was set up to hear seriDus criminal offenses was composed of military and civilian members, but the civilians were even!u­
all~dr'!\':~n v. Kahanamoku, 327 U.S. 304, 320-24 (1946).
61. Evan J. Wallach, "The Procedural and Evidentiary Rules of the Post~World War II War Crimes Trials: Did They Provide an Outline for Inlernational Legal Procedure?" 37
Columbia Joumat of Transnational Law (1999): 851, 884 note 5; Matthew Lippman, "Pros­
ecullons of Nazj War Criminals before Post-World War II Domestic TribunalS,· 8 Year­
book of Inlemalional Law (1999-2000): 14, 84, 85.
62. Colonel Frederick Bernays Wiener, "Commenl: The Years of MacArthur, vol. III:

MacAl1hur Urjustifiably Accused of Meting Out 'Victors' Justice' in War Crimes Cases," 113 Mililary law Review (1986): 203, 204.
63. Law Reports of Tn'als of War Cnmina/s, Vot. PI, cas. 21 (London: H.M. Stationery

Office, 1948). 1-78.
64. Geneva Convention Relative to the Treatment of Prisoners of War, arts. 82-88
65. Johnson v Eisenlrage" 339 U.S. 763, 765-67,777,785,789-90 (1950).
66. Colonel Ted B. Borek, "Legal Services During War," 120 Military Law Review
1W~~kP., ~80) 29-30.
68. Ibid., 31.
69. M.AJ David A. Anderson. ~Spying in Violation of Mele 106, UCMJ: The Offense
and the Constitutionality of its Mandatory Death Penalty: 127 Mililary Law Review (Winter 1990): 3.
Tlials of IMir Criminals, vol. III (1948), Cas. 14,56; Cas. 15,60; Cas. 16,62; vol. III, Cas. 17 ane 18,65.

U.S. v TIede, 86 F.R.D. 227, 228-38, U.S. Ct., Berlin, 1979, In 1952, U,S. occu­

pation courts averaged 1,000 trials a month of German and U.S, defendants (Madsen I/.
Kinsella, 343 U.S.119521, 341. 360 nole 23).
Trials of War Climmals, vol. I, Cas. 2, 22 (1947); vol. XI, Cas. 63, 10 (1949).

Mudd v Catdera, 134 F. Supp. 2d 138, 14M2 (D.C. O,C .. 2(01).

Mudd v. Caldera, 26 F. Supp. 2d 113, 117 (D.C. D.C" 1998).
75, Ibid,117.

Mudd, 134 F. Supp. 2d at 146.

Ibid., 147,

78. Neil A Lewis, YSuit to Clear Doctor Who Trealed Booth is Djsmissed,~ New York
nmes. 8 Naverroer 2002, 15.
79. Coalition of Clergy el al. v. George Walker Bush et al.. 189 F. Supp. 2d 1036, 1039, 1048-50 (COO. Cal., 2(02).
in~~n~~Z1T~~~~IY~~~,eA~O~le5 Detainees in Cuba AccesS to U.S. Courts," Wash~
M:~h~~k3~rA~~~:~~:::n~:~v~e~~~~~~:i~~~SUPI~~ToO~~~'a'VY~~~~nO:~~ :~;r~~
82. ~Govemmenl doesn't care about Hicks: father," The West Australian, on-tine at
www.lhewesLcom.aul2oo303121newsilalesVlw-news-latesl-home-st091058.html , 13 March 2003.
Enacted by Con9ress in 1950, the UCMJ is located al Title 10 USC, secs. 801­947 (2002).

Manual for Courts-Martial (MCM), 2002 ed., Part I, "Pr.amble."


86. The UCMJ contains several articles that address mililarycommlssions (10 USC,
sees. 836, 837, 847, 848, 850 (20021.
10 USC, sec. 818 (2002).

Ibid, sec. 821 (2002).
89, tbid .. sec. 904, 906 (2002).

90. MCM, "Preamble," par. 2(b)(2), 1-1. In his 1912 appearance before the House

laws of war rather than statute" (TrialS of War Cn'minals, vol. IV, 68 note 2, citalion omit·
91. Military Order, sec. 1(t).

92. The presiding officer is tasked with ensuring the proper conduct of the proceed· ~?sS~i~i(B~Dt~~'f.Sp~~:.vii.~(~' t5)~:~~nl.;s a voting member of the military com­
DOD MCO 1, par. 4.A.(2), (3).

Ibid.. par. 4.C.(2), (3), (4).

Ibid., par. 5.

Ibid" par. 6A.(4).

Rules for Courts-MartiaI705(b)(2)(E) and 1107(d)(1J. MCM, 2002 ed.

DOD MCO 1, par. 6.D.(1).

Ibid" par. 6.F; 6.G

Ibid., par. 6.H.(4); 10, USC, sec. 603, 27.

Ibid., par. 6.H.(5), (6),

102. President Franklin D. Roosevelt's proclamation that convened the mllltary com~ mission that tried the German saboteurs In the Quinn case likewise denied defendants access to the courts, but the U.S. Supreme Court noted that it was still for a court to decide whether the prodamation were applicable 10 a particular case (Quirin, 317 U.S.
at 23, 25).
J~~~a7~~~~~e~~~~~B~~~;"'''~~I~~~~tj;,sl Military Commissions,~ The Amer;can
104. Sean D. Murphy, ·U.S. Department of Defense Rules On Military Commissions,~

The American Joumal ollnlemationa/law (July 2002): 733-34,
105. Madsen, 343 U.S. at 348, 354; MG MiChael J. Nardotti, Jr" "Military Commis­sions," The Army lallYer (March 2002): 1,4.
106. The Intemational Convention on Civil and Polilical Rights, art. 14, sets out the mini­

mum due process requirements for trials (GA Res. 2200A (XXI), U.N. GAOR, Supp, No. 21,52, U.N. Doc. Al6316 (1986),999 U,N.T.S. 171).
107. Ruth Wedg\NOQd, "AI Qaeda, terrorism, and military commissions,~ The American

Joumat oflntematlOnallaw (April 2002): 331-32.
108. HDOO Releases Draft Milila[Y Commission In5truclion,~ DefenseLlNK, on~line at

www.defenselink.miVnewslFeb2003/b02282oo3bt092-03.html. 28 February 2003,
109. Draft MGI, par. 3 A, on-line at

Draft MCI, par. 6.A.1.

Draft MCI, par. 6.A.8.

Draft MCI, par. 6A 16.

Draft MCI, par. 6A18.

114. Draft Mel, par. 4.B. "Wilh respect to the defense of lack of mental responsibility, the accused has the burden of proving by clear and convincing evidence, that, as a re­sult of a severe mental disease or defect, the accused was unable to appredale the na­ture and quality of the wrongfulness of the accused's acts."
Lieutenant Colonel Jody Prescott, Us. Aml)\ is Associate PlVfessor ofMilitwy Lmv and Chief, MilitCII)' Law Office, Fort Leavenworth. He received a B.A. from the University of Vermont, a JD. from the University ofMaine, and em LL.Mfrom Georgetown University Law Ce11la He has served as Deputy StaffJudge Advocare, Fort Rich, Alaska; Chief, International and Operarional Claims, Mannheil11, Germany; Senior Defense Counsel, Stullgart, Germany; and Commissionel; Army Court ofCriminal Appeals, Falls Church, Virginia.
Major Joanne Eldridge, Us. Army Reserve (USAR), serves i11 the Judge Advocate General sCorps, USAR. She received a B.A. from Boston College, a JD. from George Washil1gton University Law School, and an LL. M from the Us. Army Judge Advocare GeneroJ:S School, She has served as an InslnICra!; us. Army Command and Gel7eral Stafl College; Chief, MilitCII)' Justice, Combined Arms Cente!; Fori Leavenworth; Litigation Attorney, Us. Army Legal Services Agency, ArlingroJ], Virginia; Branch Chief, US Anny Governmel1t Appellate Division Falls Church, Virginia: emd Appellate A lIome)!. US Army Government Appellate Division, Falls Church, Virginia.
MILITARY REVIEW 0 March -April 2003