Reply #84: Very true, if you get to a US Military Court Martial, it is very fair. [View All]

Most enlistees who are railroaded by the Military are railroaded BEFORE they get to a Court Martial, i.e. they take an administrative "Punishment" to avoid a Court martial, without knowing the Court Martial would treat them fairer. This is the chief problem with the Military Legal System, how it is used BEFORE someone gets Court Martial (and how far people back off when you say "Court Martial me and get it over with" for a court marital is the last thing most people in authority wants to happen, for it will come down as hard on them as on the Defendant if the Defendant is in the right).

On the other hand, what is being set up is NOT under the Uniform Code of Military Justice (UCMJ) but its own rules. The first time it was used was doing the Mexican War, when General Scott ran across a problem. How do you try people NOT subject to the Articles of War (The statute in force at that time, replaced by the UCMJ in 1954) but then commit Crimes that no civilian court could hear do to the fact you were in a foreign country and that country's courts were in disarray? Thus General Scott set up the first Military Tribunal to handle such cases. They were used again in similar extra ordinary circumstances, but that was rare. Even at the time of the Mexican war most commentators believe they would be invalid if a Civil Court was available, but were legal if no civil court were available.

During WWII, FDR had a problem. He wanted German espionage agents executed for espionage, but he wanted to make it quick to set an example. FDR had served in Wilson administration during WWI, when German espionage in New York City caused a huge amount of Damage, the most famous was the 1916 Black Tom Explosion http://en.wikipedia.org/wiki/Black_Tom_explosion and that was BEFORE the US was in WWI.

More on the mastermind of German WWI American Sabotage:
http://en.wikipedia.org/wiki/Franz_von_Rintelen
http://www.zwire.com/site/news.cfm?newsid=15210353&BRD=1291&PAG=461&dept_id=551343&rfi=6
von Rintelen had even help set up the "National Peace Council" to encourage Strikes.

Anyway, FDR did NOT want what had been a rash of Sabotage from 1915 through 1918 to resume and he believed a quick conviction and sentence would help prevent such sabotage (The WWI sabotages, because it was done before the US was in WWI, walked with sentences of only 1-3 years provided they were captured at all, most were not).

Thus FDR set up a WWII tribunal to try the Sabotages landed by U-Boat in the US. The trial was held and all of the people landed by U-Boat were sentenced to be hanged. FDR and the rest of his administration (including J Edgar Hoover of the FBI) was happy with this result. The Supreme Court even upheld it as military necessary given that the Country was at war. The trial was authorized by FDR on July 2, 1942 and upheld on appeal on July 29, 1942 (27 days from trial to final appeal). See Ex Parte Quirin http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/quirin.html They had landed on June 13 and June 17 1942, so from landing in the US to Final Ruling by the Supreme Court it was 46 days, counting from June 13). Please note the appeal to the Supreme court was during the trial, the court accepted it as extra-ordinarily and then upheld the Military tribunal as valid, basically foreclosing any other appeal on that issue (or any other issue, given that the 8 were clearly guilty, the only issue was who should try them and remembering the Irish hostility to Britain during WWI, FDR did NOT want a jury, who may NOT impose a death sentence).

The really Scary part was after the Supreme Court upheld the trial and Convictions and Sentence. Then the Government wanted to execute all eight of them. Someone managed to get into the papers an important fact that the commission had ruled insignificant, that the reason the eight were captured was that two of them turned themselves and the other six in to the FBI (And it later came out the first attempt was dismissed by the Agent contacted). After this came out, those two were re-sentenced to long prison sentences (and returned to Germany after the war, while before the end of their Life and 30 year sentences).

Justice Jackson's unpublished concurrence with the rest of the Court:
http://www.greenbag.org/goldsmith%203-28-06.pdf

The Quirin case is the case everyone is relying on to uphold the present military tribunal. Jackson in his concurrence (and in the main opinion) mentioned the Civil War cases which ruled otherwise but those involved Civilians NOT military personnel AND they were NOT performing military like actions (the rationale in Quirin). Please note Quirin was decided before the Geneva Convention of treatment of POWs, while the people who took over and flow the planes on 9/11 do NOT meet the requirements of the treaty, most of the people presently held do:

Geneva Convention on Treatment of POWs:
http://www.unhchr.ch/html/menu3/b/91.htm

Which defines POWs as follows (ratified by the US Senate, but the people being tried, by Order of President Bush, do NOT fit any of these categories:
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.