The purpose of this article is to, hopefully, reign in the craziness around the internet regarding deceptive points made by accounts with large followings. To that end, this article is a single point in a galaxy of points to be made.
Too many stories are incomplete. In being abridged, they are deceptive. Words mean something. Leaving important words out of a story is a lie of omission.
For years now, there has been a lie running through the veins of social media. One claiming that individuals that we know have committed crimes against the people of the US will be subject to military tribunals. In some of the more bold cases, the claims are that such tribunals have already taken place.
Today’s word of omission is “Jurisdiction”
According to Cornell’s Legal Information Institute
“Jurisdiction can be defined as:
2) Territory within which a court or government agency may properly exercise its power. See, e.g. Ruhrgas AG v. Marathon Oil Co. et al., 526 U.S. 574 (1999).
Jurisdiction: An Overview
One of the most fundamental questions of law is whether a given court has jurisdiction to preside over a given case. A jurisdictional question may be broken down into three components:
- Whether there is personal jurisdiction [aka whether the court may even hear the case involving the particular defendant(s)]. This is further broken down into 3 categories (See Pennoyer v. Neff for additional information):
- in personam jurisdiction
- in rem jurisdiction
- quasi in rem jurisdiction
- Whether there is jurisdiction over the subject matter
- Whether there is jurisdiction to render the particular judgment sought”
The claims of pending as well as ongoing military tribunals against civilians is presented with admirably designed deceit. In specific, the claim is that certain civilians are currently facing or will be facing military tribunals. Many of the persons in question are elected officials, extremely wealthy persons, and heads of national institutions.
These claims would necessarily require the military’s jurisdiction to leapfrog over the Constitutional jurisdiction of civilian courts – a terrifying concept as such an overtaking of the courts would have far-reaching constitutional implications.
So What is the Jurisdiction of Military Tribunals?
According to Aaron Meyer Law:
In general, anyone who is subject to military law can be tried by a military tribunal. This includes:
- Members of the armed forces. This encompasses all individuals who are serving or have served in the Army, Navy, Air Force, Marine Corps, or Coast Guard. Active-duty personnel, reservists, and National Guard members are all subject to military law and can be tried by a military tribunal if they are accused of breaking the law.
- Enemy combatants. Enemy combatants are individuals who are fighting against the United States in a war or other armed conflict. They can be tried by a military tribunal if they are accused of breaking the law.
- Civilians working for the military. This includes contractors, employees of defense companies, and other civilians who are working for the military. Any of these individuals can find themselves subject to military law and in a military tribunal depending on the circumstances.
Again, words matter
The claims that civilians are subject to tribunals fail to articulate under what conditions any civilian might find themselves facing such tribunals. But in 1866, the US Supreme Court ruled on various questions in Ex Parte Milligan.
Justice Davis wrote the majority opinion, which was joined by Justices Clifford, Field, Grier, and Nelson. The majority opinion stated that so long as civil courts were active at home, it was unconstitutional to try American citizens by military tribunal. They also said that Congress did not have the power to authorize a military commission in Indiana.
The majority also laid out the three situations where military tribunals were appropriate. They stated that Milligan must be released immediately as his rights had been violated and he had not been given due process of law.
Ex parte Milligan 71 U.S. 2 (1866). (n.d.). Retrieved from https://supreme.justia.com/cases/federal/us/71/2/case.html
This case laid out the three types of military jurisdiction (taken from the site previously linked here):
- “The first of these may be called jurisdiction under MILITARY LAW, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces”
- “The second may be distinguished as MILITARY GOVERNMENT, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress.”
- “The third may be denominated MARTIAL LAW PROPER, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights.”
Point 3 is frequently misconstrued among those insisting that tribunals are happening under martial law or laws of war.
NOTE: DoD’s Law of war is specific to armed conflict. The manual does NOT apply to activities within the US and its territories; a condition where all bets are off. It is a document reflecting the DoD’s interpretation and application of international laws regarding how one state shall manage affairs within other states that it occupies.
Martial Law
Martial Law is a declared state – under all US jurisdictions. There has been no declaration of Martial Law within the United States since Abraham Lincoln. Had there been a declaration of martial law, the commensurate lockdowns would have been unmistakable.
The Constitution is an interesting document. It doesn’t define Martial Law, but it does define who can declare it (President, Congress, and, state governors). Declarations and their consequences are subject to Constitutional review.
To be clear, the entirety of the US is NOT currently under Martial Law, and it hasn’t been for more than 150 years. True, martial law has been declared 68 times in US history. All but one have been at the state or regional level.
If you’ve gained anything from this article, please share it.
Below is a list of core topics for the reader to explore:
The military is restricted concerning enforcement of civilian law (Posse Comitatus Act)
Civilians not associated with Military ops are not subject to military tribunal
The DoD Law of War manual (as updated in 2023) governs US military occupation of foreign nations/territories