Military Rules and Regulations

                    The topic of discussion for this Constitution Monday comes from Article I.8.14:  "The Congress shall have power … To make Rules for the Government and Regulation of the land and naval Forces."  This provision of the United States Constitution simply states that the military is subject to the civilian authorities.  The Constitution made the President the commander-in-chief of the military, and then it gave the Congress the power to regulate and restrict all military forces, whether national or state.

                    "In his Commentaries on the Constitution of the United States, Justice Joseph Story remarked that Congress's power to govern and regulate the land and naval forces is `a natural incident to the preceding powers to make war, to raise armies, and to provide and maintain a navy.'  Yet the Framers had overlooked this `natural incident' until after the Committee of Detail submitted its draft.  Only then was a motion made from the floor to copy the language from the Articles of Confederation into the new Constitution, making explicit the grant of plenary power to Congress.  It passed without controversy.  By placing the power in Congress, the Framers helped to define the respective roles of the legislature, the executive, and the judiciary over the Armed Forces and thus lessened the chances for serious conflict.  Story explains:  `The whole power is far more safe in the hands of congress, than of the executive; since otherwise the most summary and severe punishments might be inflicted t the mere will of the executive.'  The central purpose of the clause is the establishment of a system of military law and justice outside of the ordinary jurisdiction of the civil courts.  Tradition and experience taught the Framers that the necessities of military discipline require a system of jurisprudence separate from civilian society."  (See David F. Forte and Mackubin Owens in The Heritage Guide to the Constitution, p. 136.)

                    There have been a few controversies about military justice and military tribunals since 9/11.  Both President George W. Bush and President Barack Obama have wrestled with how to treat captured terrorists - whether from foreign nations or home grown ones.  Several cases went to court about this subject.

                    "As events after 9/11 indicate, a controversial aspect of military justice is the establishment of military tribunals.  Military tribunals established in occupied territory are governed by international law.  In Dow v. Johnson (1880), the Court rules that the law governing an army invading an enemy's country is not the civil law of the invaded country or of the conquering country `but military law - the law of war.'

                    "The Court has upheld the authority of the President to try enemy aliens (and United States citizens working with them) by military tribunal in Ex parte Quirin (1942).  The Court held that enemy aliens (in this case saboteurs, who had entered the United States in secret for the purpose of committing hostile acts) are not entitled to prisoner-of-war status, but are unlawful combatants who can be tried by military tribunal.  The Court, in Rasul v. Bush (2004), relying on Burns and other cases, held that the federal habeas statute confers federal district court jurisdiction to hear challenges of alien detainees held at Guantanamo Bay.  However, the Court explicitly did not decide the substance of those rights and limited the habeas extra-territorial reach to Guantanamo Bay, which it said had a unique relationship to the United States.  At the same time, in Rumsfeld v. Padilla (2004), the Court, on jurisdictional grounds, avoided ruling on the extent of the President's power to keep a U.S. citizen in military custody as an enemy combatant; but in Hamdi v. Rumsfeld (2004) the Court decided, without a majority opinion, that the government must give a U.S. citizen held in the United States some type of hearing at which he may contest the facts on which the government decided to treat him as an enemy combatant."

(See Heritage Guide, p. 138.)