to trial by military commission is determining which type of military
commission is at issue.
a. Martial Law Courts, when used within the U.S. or its territories when
replacing the civil government.
b. Military Government Courts, when used outside of the U.S. (or within the
U.S. in rebel temtory during the Civil War) in lieu of the civil
government.
c. War Courts, when used by a military commander for the purpose of trying
someone for violations of the law of war.
- Limitations on Jurisdiction based on Location.
a. Historically, offenses within a military commission's jurisdiction (when
sitting as a Military Government Court or a War Court) must have been
committed (1) within a theater of war, (2) within the temtory controlled
by the commander ordering the trial, and (3) during a time of war.
b. In the Civil War, all three types of military commissions were used
extensively, especially after Lincoln's 1862 declaration of a state of
martial law throughout the country. Some thought the expansive use
authorizing the trial of U.S. citizens outside of a zone of occupation or
insurrection was not proper, while others accepted this stating the entire
country was within a theater of war. In Exparte Milligan,71 U.S. (4
Wall.) 2 (1866), the Supreme Court limited the jurisdiction to areas under
valid martial law or occupation, thus commissions were still valid in the
occupied South.
c. World War I1 saw the next extensive use and due to the global nature of
the war, the "theater of war7' requirement lost much relevance. For
example, in Quirin,neither the trial nor the defendants' crimes were
committed in the theater of war as traditionally defined; yet the Supreme
Court said the military commission had jurisdiction because the crime was
committed when the defendants passed through the U.S. military lines and
remained in the U.S. (U.S. briefing argued that the global nature of the
war put "every foot of this country within the theater of war.").
- Limitations on Jurisdiction based on the Person.
a. U.S. citizens.
