In \u201cMilitary Courts and Article III,\u201d 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 \u201cmilitary exception\u201d to Article III\u2019s requirements of a jury trial and lifetime-tenured judge has \u201cincreasingly become untethered from any textual or analytical moorings.\u201d 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 \u201cnon-service-connected\u201d conduct by members of the armed forces of the United States.<\/p>\n
Professor Vladeck views these perceived flaws as a problem that must be remedied by his counter-historical proposal: that international law should govern Congress\u2019s 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\u2019s analysis fails to acknowledge the importance of deference to Congress\u2019s 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. . . .<\/p>\n