“To make rules for the government regulation of the land and naval forces;” Article 1, Section 8, Clause 14, US Constitution.
This clause is known as the Military Regulation Clause. The purpose of this clause is to establish a system of military law and justice outside the jurisdiction of the civil courts. The power to establish this was given to Congress.
Joseph Story, in Commentaries on the Constitution of the United States (1833) stated, “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 at the mere will of the executive.”
In 1775, the Continental Congress adopted codes of military law for the Army and Navy. John Adams wrote the law: Rules for Regulation of the Navy of the United Colonies (1775) and American Articles of War (1775).
After the adoption of the Constitution (1787), the First Congress decided both codes would continue. The two laws have been revised several times over the years.
In 1950, Congress passed the Uniform Code of Military Justice (UCMJ). The reason for creating this law was to eliminate differences between the Army and Navy codes and to reduce “command influence”.
Military courts fall into two categories:
1. Martial and military courts of inquiry – to deal with military personnel
2. Military commissions or tribunals – to deal with civilians who have fallen under military jurisdiction
Since 9/11, a controversial aspect of military justice is the establishment of military tribunals. Military tribunals in occupied territories are governed by International Law. In Dow v. Johnson (1880), the Court ruled 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.” Per Forte and Owens, writing for Heritage Foundation.
“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.” Per Forte and Owens, writing for Heritage Foundation.
With the Military Regulation clause, we the people give Congress the authority to establish and maintain the Uniform Code of Military Justice.
We the people get a separate court system for those in military service and civilians who fall under military jurisdiction. This system is specialized for the types of situations that arise during military service and in times of war or conflict.
References:
Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950
http://www.heritage.org/constitution/#!/articles/1/essays/54/military-regulations