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This chapter focuses on the president's use of prerogative powers and the treatment of detainees in the war on terror. President Bush asserted his prerogative power in interpreting and reinterpreting conventions and customary international law obligations, and in interpreting the obligations of government officials to execute faithfully statute law, the Uniform Code of Military Justice, and various directives. It is argued that officials at the highest levels of government made decisions based on the constitutional authority of the president (as administration lawyers defined it) that left open the probability that detainees would be subjected to inhuman treatment and torture as defined by international law. The chapter explores why the issue of the treatment of prisoners has not risen to the level of an Iran-Contra affair and what the reaction tells us about the politics of prerogative power.

This chapter examines the repressive jurisdiction that prosecuted civil war criminal ‘responsibilities’ — the military justice system. It traces the historical reasons why the military could arrogate to itself such powers. It stresses that the military authorities accepted, and acted upon, the assumption that everyone who remained in Madrid during the civil war could be guilty of ‘military rebellion’.

This chapter discusses how the regime confronted the inevitable consequences of inverse military justice. It argues that from 1940 the regime increasingly saw the prosecution of civil war criminal ‘responsibilities’ as a ‘problem’ and proceeded to wind it up by moderating the sentencing policies adopted by military tribunals and paroling prisoners convicted of civil war offences.

This chapter concentrates on military court judges and prosecutors. It specifically investigates their legal roles and practices and explores variations in their perspectives on the functioning of the military court system and the legitimacy of Israeli military rule over Palestinians in the West Bank and Gaza. The issue of the judge's anger provided another narrative device to reflect on the influence of emotion in individuals' relations with others in the military court system. The intifada raised long-simmering concerns about the negative consequences of protracted military occupation on Israeli society. The tendency of judges to prefer prosecution evidence is openly acknowledged. Israel's continuing ability to prosecute and punish Palestinians took on new meanings under the changed political arrangements. There is a possibility that those Jewish Israelis who have been critical of the occupation in the past will be critical if it continues into the future.

This chapter examines the depiction of military justice in motion pictures and television drama in the United States. The emergence of the court-martial drama roughly corresponds with the genesis of legal films. Court martial films tended to oscillate between the traditional generic courtroom dramas and war films, and in a way they may be described as a subgenre of the courtroom film. From 1931 to 1940, thirty-four American films focused on the topic of court-martial including Rules of Engagement, One Kill, and Hart's War.

Military justice has never been intended as an exact replica of civilian justice. Historically, the need to maintain discipline under the enormous stress of combat and the high stakes of war impelled all militaries to create a separate and, in many ways, unique justice system. The result is a criminal law process in which military needs sometimes must take precedence over certain rights-centered formalisms of a nation’s civilian justice system. However, beginning with the adoption of the Uniform Code of Military Justice in 1951, the two U.S. systems have become increasingly close, with the importation into the military realm of many of the procedural protections of the civilian system. Military justice retains its distinctive features, including the criminalization of absence, cowardice, and insubordination, as well as other offenses without civilian counterpart but which are indispensable for what the Supreme Court calls the armed forces’ “separate society.” In addition, some procedural differences continue to exist, including command selection of military “juries,” as well as an appellate court system empowered to review de novo factual findings of a court-martial. Recently, the use of military commissions—which are separate from courts-martial—have been revised to address war crimes committed by nonstate actors. Today, issues have arisen about the ability of the military justice system to operate independently and effectively. In part, this is the result of well-intended efforts over several decades to “civilianize” and “judicialize” its processes—modifications that have often proven ill-suited to combat zones. Even more problematic is the tendency of political leaders and interest groups to encroach on the role of commanders in military justice matters, and to inject other political influences that threaten the military justice system’s independence and effectiveness.

This chapter outlines the military justice system. In doing so, the chapter explains why the military maintains a separate justice system—regulated by what is often referred to as “military law,” highlights its novel aspects, and discusses contemporary challenges. Using vignettes and historical examples the chapter begins by outlining the foundations of the system. It then moves into a discussion on the sources of authority for the Uniform Code of Military Justice and the Manual for Courts-Martial, and uses case studies to explain how the system works. The chapter also offers unique insights in practicing military justice in a deployed environment and the importance of maintaining command responsibility over the system. The chapter concludes that, despite ongoing criticism, there remains an overwhelming need for an independent military justice system.

This chapter examines the history and structure of US military justice and the prosecutorial role within this system in order to understand why military prosecutors have not become more like their civilian counterparts. The answer to this question appears to be that the public has not felt change in this area is necessary to create a more just legal system. Most reforms to the military justice system happened only after a public uproar and a demand for change from outside the military. Thus far there has been no outcry regarding the role of the prosecutor in the military justice system. Perhaps concerns regarding military justice are only raised when the system appears inexplicably different from civilian justice or overtly unfavorable to the accused. In the case of military prosecutors there are important reasons commanders, not prosecutors, possess positive prosecutorial power. Furthermore, a system where legal professionals answer the question of whether a criminal charge can be brought, and nonlawyers answer whether criminal charges should be brought, has some appeal.

Military justice is central to the relationship between civilians and warfare. This is because the military's judicial apparatus is designed not only to prosecute those who violate military discipline but also to protect the civilian population from assaults by soldiers and any violations of the laws of war. During the period spanning the second half of the seventeenth century until the death of Louis XIV, king of France, in 1715, the nature of military–civilian relations was influenced by warfare. Civilians in early modern Europe were most often affected by war due to military logistics, army provisioning, and associated consequences such as billeting and contributions. This chapter examines the impact of French military justice on civilians under Louis XIV, and how the state administered and maintained the military discipline needed to protect civilian populations from abuses by the army. In particular, it describes military discipline, and the conduct of the French army towards civilians during the Thirty Years War and the Franco-Spanish War.

Throughout the US-Vietnam conflict (1965–1973), American forces labored to comply with the Geneva Conventions and customary laws of war, though US war crimes largely overshadowed those efforts. This chapter relates the training US forces received on the law of war and describes how military lawyers practiced law “in country.” US combatants were constantly directed to report war crimes, known or suspected. Too often those directives were not obeyed. My Lai is fully examined, including its badly failed military prosecutions. Disturbing post-trial clemency by civilian authorities, in many cases, is also detailed. On the whole, however, the sentences of US personnel convicted by courts-martial of war crimes were sincere efforts to appropriately punish battlefield criminality. This chapter argues that, under difficult conditions, US military efforts in Vietnam to comply with the Geneva Conventions, and to punish known US war crimes, were more genuine and effective than have been generally recognized.

Historians have long portrayed enlisted men as the hapless victims of ‘a cruel and capricious court system that could hand out sentences of appalling magnitude’ (Arthur Gilbert). While such images fit well with the popular stereotypes of military justice, the reality of common soldiers’ participation in the system was far more complicated and nuanced. This chapter reveals the variety of roles played by enlisted men in the military justice system, as well as the ways in which they manipulated the justice process for their own ends. Soldiers served as military police, witnesses, informants and executioners. Without their cooperation, the system could not have functioned effectively, as officers were too few in number to carry out the mandates of the Mutiny Act and the Articles of War alone. This dependence on ‘good soldiers’ left enlisted men in a position to apply pressure on their officers. As a result, military justice, while occasionally arbitrary and extreme, was more often the scene of negotiation and manipulation of social dynamics.

This chapter examines the neglected topic of Westminster’s militarization, both during the civil war and especially after it. In contrast to much of the rest of the country, it was actually after the civil war that a military presence became more firmly established in the town in the decade that followed the military occupation of Westminster in December 1648, when permanent garrisons were entrenched at its heart. The chapter examines the extent and nature of military involvement in the locality, including the impact of regular security ‘scares’ over suspected royalist plots, and significant military/civilian clashes in the election of Westminster’s own local MPs. The chapter also focuses on what this meant for inhabitants – not just a regular round of military musters, marching troops and busy garrisons, but also the seizure of horses, the searching of goods and letters by courts of guard, occasional affrays, public displays of military justice, and armed searches of private houses.

Deeply contextualized stories of deserters sustain this chapter, placing the reader in the shoes of men on the run. The reader will find that desertion possessed its own situational logic, rooted in time and place and shaped in decisive ways by the politics and personality of the soldier.

This introductory chapter provides an overview of the book's main themes. It examines manhood in the north as it played out in the specific context of the Union army. It attempts to recover the place honor held in northern men's conception of manhood and in their daily interactions with one another. Honor, simply put, is when a man's self-worth is based on public reputation and the respect of others. An insult to such a man is a shaming that requires a public vindication of worth. The book also exposes holes in our understanding of Civil War soldiers and the social landscape of the Civil War north, including the influence of class—a topic obscured by historians' reliance on the letters and diaries of elite and middle-class soldiers. The remainder of the chapter provides a quick summary of the basic structure of the army, military discipline, and military justice to serve as background for readers to understand the chapters that follow.

Despite dozens of official inquiries in the years since the Abu Ghraib photos first exposed abuse in April 2004, the torture scandal has continued to spread like a virus, infecting all who touch it. Through every sordid incident in this process of impunity--Dick Cheney’s unapologetic claims of torture’s efficacy and President Obama’s halting retreat from promises to end the abuse--Washington is returning step-by-step to a contradictory policy that made torture America’s secret weapon throughout the Cold War. After tracing a short history of psychological torture, of the adoption of torture during the “war on terror,” and of torture advocacy by professors, pundits, and psychologists, the chapter proposes an analysis of impunity that frames recent revelations about the U.S. use of diplomatic pressure to effect impunity on a global scale, as well as the evasion of responsibility for continuing torture operations by outsourcing the work to Iraqi and Afghani authorities.

This chapter examines Fort Riley, Kansas, from 1898-1940. The chapter provides an overview of the military justice system and looks at specific legal cases to explore how the U.S. Army thought about issues related to sexuality: family life and marriage, sexual propriety, venereal disease, homosexuality, and sexual violence. Examining how the army treated what it considered criminal violations of a sexual nature in its court-martial process provides insight into what behaviors the army considered transgressive, how it publicly discussed such transgressions, and how it dealt with offenders. The chapter also reveals how entangled the army’s notions of marriage, the family, and sexual propriety were with social class and gender relations in how it policed contact between enlisted men and civilian women of various social classes.

This chapter provides an overview of why the U.S. Army sought to address perceived problems caused by soldiers’ sexual interactions with civilians and other soldiers as the army deployed across the Caribbean and into the Pacific and Europe in the early twentieth century. Military planners, army leaders, War Department officials, and civilian observers of the military were intensely concerned about issues related to sexuality because they tended to believe that soldiers had irrepressible sexual needs that could cause harm to the army. The army also believed that by instituting a series of legal regulations and medical interventions, it could mitigate the damages to the institution arising from sex, while also shaping soldiers’ sexuality in ways the army and interested civilian parties might find more acceptable. The chapter describes the research methodology and chapter overviews for the book as a whole.