A Military Justice Solution in Search of a Problem: A Response to Vladeck
Written By: Geoffrey S. Corn & Chris Jenk
In “Military Courts and Article III,” our colleague and fellow law professor Steve Vladeck has made an original and important contribution to the literature on the interaction of military tribunals with Article III of the U.S. Constitution. Professor Vladeck argues that what he calls the “military exception” to Article III’s requirements of a jury trial and lifetime-tenured judge has “increasingly become untethered from any textual or analytical moorings.” In particular, Professor Vladeck questions the power of military commissions to try suspected terrorists on charges that do not constitute international war crimes and the power of courts-martial to try civilian contractors and hear charges based on alleged “non-service-connected” conduct by members of the armed forces of the United States.
Professor Vladeck views these perceived flaws as a problem that must be remedied by his counter-historical proposal: that international law should govern Congress’s power to establish both military commissions to try suspected terrorists and courts-martial to try members of the U.S. armed forces. Our response, which centers on courts-martial, argues that Professor Vladeck has offered a solution in search of a problem. Moreover, Professor Vladeck’s analysis fails to acknowledge the importance of deference to Congress’s exercise of its war powers, and the resonance of U.S. and English history familiar to the Framers. We write to clarify the categories of military jurisdiction, their basis, and their rationale. . . .
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