Military Commissions: Constitutional, Jurisdictional, and Due Process Requirements

• Author: Jordan J. Faust
• Position: University of Houston
• Pages: 289-302

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Military Commissions: Constitutional,

Jurisdictional, and Due Process

Requirements

Jordan J. Paust*

Presidential Power to Create a Military Commission and

Jurisdictional Competence

ThePresident's power as Commander-in-Chief to set up amilitary commis-

sion and the jurisdictional competence of amilitary commission apply only

during an actual war within awar zone or awar-related occupied territory. 1As

Colonel William Winthrop recognized in his classic study of military law: "A mili-

tary commission . . . can legally assume jurisdiction only of offences committed

within the field of command of the convening commander," and regarding mili-

tary occupation, "cannot take cognizance of an offence committed without such

territory —The place must be the theater ofwar or aplace where military govern-

ment or martial law may be legally exercised; otherwise amilitary commission ..

.

will have no jurisdiction . . .."2The military commission set up within the United

States during World War II and recognized in Ex parte Quirin3had been created

during war for prosecution of enemy belligerents for violations of the laws of war

that occurred within the United States and within the convening authority's field

of command—which in that case was within the Eastern Defense Command of the

United States Army.4

*Mike and Teresa Baker Law Center Professor, University of Houston.