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Military Courts & Article III (LAW-795MJ-001)
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For reasons both obvious and less so, the past decade has seen a significant upsurge in litigation, legislation, and scholarship concerning the relationship between the civilian and military federal courts, and the extent to which the Constitution limits both the personal and subject-matter jurisdiction of the latter.
Most noteworthy, of course, are the military tribunals for Guantánamo detainees created by President Bush (and later reincarnated by Congress through the Military Commissions Act of 2006). Although the Supreme Court’s decisions in Hamdan v. Rumsfeld and Boumediene v. Bush have had a lot to say about the constitutional limits of some of these measures, many questions (especially vis-à-vis the jurisdiction of military commissions under the MCA) remain unanswered as of today.
Moreover, the same period had also witnessed the enactment of the Military Extraterritorial Jurisdiction Act (MEJA), the expansion of the Uniform Code of Military Justice (UCMJ) to authorize the trial by court-martial of certain civilian contractors, and additional attempts by the political branches to constrain the ability of both the regular military courts and the Article III civilian courts to provide collateral review of court-martial convictions. Although not the subject of as much public debate, these measures have similarly implicated fundamental questions about the scope of the military justice system—questions that have not been asked, let alone answered, in over a half-century.
Thus, our focus this semester will be on the constitutional justifications for separate military courts, how those justifications square with the text and case law interpreting Article III, and the extent to which, even where military courts are constitutional, the Constitution requires or constrains collateral and/or appellate review of their decisions in Article III courts.
More than a timely study of current events, though, the relationship between the Constitution and military jurisdiction may have a lot to teach us both about the more general relationship between civilian authority and the military and about the Constitution’s role in prescribing the interactions between Article III and non-Article III courts. Thus, although our specific focus in this seminar is on the limits the Constitution imposes upon military jurisdiction, that question is perhaps best understood as a proxy for far more sweeping examinations of how—if at all—the Constitution circumscribes the power of the military in general and of non-Article III courts in particular.
Textbooks and Other Materials
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Readings will be handouts for each class that will be provided via e-mail and MyWCL.
First Class Readings
The assignment and handout for the first class have been sent via e-mail to all students who are registered for the course. A copy of the assignment is available here.
The syllabus is available in the following format(s):