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Military Commissions: A Concise History
Published online by Cambridge University Press: 27 February 2017
Extract
As military commissions have been revived in the wake of the attacks of September 11,2001, interest has grown in the history of the institution. The United States Supreme Court, in Hamdan v. Rumsfeld, sketched out some historical notes and set forth a tripartite division between law-of-war commissions, martial law commissions, and occupation tribunals. Various authors have advanced insights on this history, though most have focused on the prominent episodes, particularly the handful of Supreme Court cases. Even the most comprehensive article gives short shrift to the massive employment of commissions in the Reconstruction era and in postwar Germany. This essay attempts to advance the cause by sketching out the entire scope of the institution’s history and indicating what further research would have to be done to arrive at a truly comprehensive treatment. A basic difficulty is that the work product of military commissions is not encompassed in a series of trial reports like the Federal Supplement or the military’s own Court-Martial Reports. A handful of cases wound up in the Supreme Court and another half dozen stood out enough to attract historians’ interest. Otherwise, commission proceedings are memorialized, if at all, only in military general orders and records of trials that were maintained in the Office of the Judge Advocate General. I have explored the records pertaining to commissions in the Reconstruction period following the Civil War in anticipation of writing a comprehensive article. It is a difficult and time-consuming task. To complete the picture, similar pick-and-shovel work would have to be done on such extensive use of the commission as occurred in Germany after World War II. Both the Civil War-Reconstruction period and the German occupation produced thousands of trials.
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- Agora: Military Commissions Act of 2006
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- Copyright © American Society of International Law 2007
References
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72 The Malmédy Massacre case was not reported. The secondary material is voluminous. The facts of the massacre are detailed in John M. Bauserman, The Malmédy Massacre (1995), which states that he relied on the files in United States v. Bersin, RG 153 & RG 338, Case 6–24, in the National Archives, Washington, D.C. Id. at 95. For a description of the pretrial interrogations and the trial, see Maguire, supra note 43, at 140–44 . The trial and its aftermath are covered in Tom Bower, The Pledge Betrayed: America and Britain and the Denazification of Postwar Germany, ch. 12 (1982). See also Investigation of Action of Army with Respect to Trial of Persons Responsible for the Massacre of American Soldiers, Battle of the Bulge, near Malmédy, Belgium, December 1944: Hearings Pursuantto S. Res. 42 Before a Subcomm. of the S. Comm. on Armed Services, 81st Cong. (1949).
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76 Anton Dostler, 1 Trials of War Criminals, supra note 5, at 22 (Rome 1945). Fifteen U.S. soldiers had landed north of the battle line to destroy a railroad tunnel. Dostler ordered them killed despite pleas from his subordinates.
77 Kurt Maelzer, 11 Trials of War Criminals, supra note 5, at 53 (Florence, Italy 1946). A ten–year sentence was reduced to three by the convening authority.
78 Ziemke, supra note 67, at 393.
79 Id. at 392–93.
80 Buscher, supra note 71, at 51. gives the figure 1672, with 1415 convictions.
81 Contemporary U.S. estimates ran from 100,000 to 500,000 potential cases. Ziemke, supra note 67, at 392–94.
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85 Neely, supra note 26, at 162, found that “trials by military commission in the Civil War were marked by procedural regularity.”
86 10 U.S.C. §948b(d)(1)(A) renders inapplicable the U.C.M.J. provision on speedy trials and, by implication, the constitutional requirement as well.
87 10 U.S.C. §948j.