US Supreme Court had twice declared military courts illegal

August 07,2015

While Pakistani Supreme Court had ruled once against establishment of military courts in 1999, the American Apex Court had twice given verdicts against the Army tribunals set up in its country, though circumstances always vary from time to time. In the United States, military courts were first declared ultra

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While Pakistani Supreme Court had ruled once against establishment of military courts in 1999, the American Apex Court had twice given verdicts against the Army tribunals set up in its country, though circumstances always vary from time to time.
In the United States, military courts were first declared ultra vires of the Constitution 149 years ago in 1866, while hearing the "Ex parte Lambdin P. Milligan Case."
The court US Apex Court had ruled in 1866 that trying citizens in military courts was unconstitutional when civilian courts were still operating.
The verdict had stated that trial by a military tribunal was constitutional only when there was no power left but the military, and the military might validly try criminals only as long as it was absolutely necessary.
The arguments for the petitioner Lambdin P. Milligan, charged for stealing weapons and invading the camps of the Prisoners of War, were also delivered by James Garfield, who had gone on to become America's 20th President in 1881.
Milligan and four others were sentenced to be hanged by a military court in 1864. While the US Supreme Court had decided that the suspension of habeas corpus by the then president Abraham Lincoln was lawful, it had opined that citizens could only be held without charges and not tried.
The verdict had added that prisoners should certainly not be executed by military tribunals.
The judges in this 1866 landmark case had held that there were three kinds of military jurisdiction under the Constitution: one, to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated as belligerents; and third, to be exercised in time of invasion or insurrection within the limits of the United States or during rebellion within the limits of states maintaining adhesion to the National Government, when the public danger required its exercise.
This distinction between martial law and military government was not commonly made before 1866. The second time the military courts were declared null and void by the US Supreme Court was in the Hamdan v. Rumsfeld Case of 2006.
In this case, the highest American court had ruled that military commissions set up by President Bush administration to try detainees at the Guantanamo Bay lacked the power to proceed because their structures and procedures violated the Uniform Code of Military Justice and the four Geneva Conventions of 1949.
The plaintiff in this case was a Yemeni citizen Salim Hamdan, who had worked as a bodyguard and chauffeur for Osama bin Laden.
Hamdan had formerly worked in Afghanistan on an agricultural project that Bin Laden had developed. He was captured by militia forces during the invasion of Afghanistan in 2001 and handed over to the United States. He was later sent to the Guantanamo Bay in Cuba.
In July 2004, Hamdan was charged with conspiracy to commit terrorism and the Bush administration had made arrangements to try him before a military commission set up by Ministry of Defence, then headed by Secretary Donald Rumsfeld. The case was argued before the court in March 2006 and decision came in June 2006.

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