Can a President Be Court Martialed?
A US President who is in office cannot be court-martialed. The President is a civilian even though he serves as the military’s Commander-in-Chief. That was planned and done on purpose. The Constitution specifically outlined a structure of government that includes civilian control of the military and checks and balances on authority.
In a Supreme Court opinion, the Court never explained the legal basis for martial law, but it does say that Congress must authorize such a move. Additionally, the United States president is a civilian but functions as the military’s commander-in-chief. While the U.S. Constitution protects our leaders from abuse of power, it does not allow the President to be tried for violating the UCMJ.
Supreme Court has never explained the legal basis for martial law.
In the United States, martial law refers to a state of emergency where the government has taken control of the government through military means. This can be imposed by the U.S. President, Congress, or state governors. While the U.S. Constitution prohibits the suspension of habeas corpus, it does state that the President can suspend the privilege for public safety reasons. This is one of the many problems when a state imposes martial law.
Martial law has been used in limited situations in the United States, including in New Orleans after the Battle of New Orleans and after major disasters like the 1906 earthquake. Local leaders declared martial law to protect citizens from rioters and mob violence. Other instances include the aftermath of the attack on Pearl Harbor and the Cambridge riots in 1963. However, the Supreme Court has never explained the legal basis for martial law.
Although the U.S. Supreme Court has never explained the legal basis for declaring martial law, the Constitution does grant the President the power to declare it. Congress has the power to suspend the writ, and it can authorize or reject a presidential declaration of martial law. Ultimately, it is up to the President to determine if it is in the national interest to impose martial law. In the past, the U.S. Congress has also refused to authorize martial law, setting up a power struggle that could result in a reversal of the Constitution.
Congress would need to authorize it.
A court martial of a president would require Congress to pass legislation defining the presidential power to use the military. The Constitution restricts the President’s authority to use the military on domestic matters, and a presidential declaration of martial law would violate those limitations. The President does not have “conclusive” authority over the deployment of military forces on domestic affairs, and the Constitution gives the most relevant authority to Congress. Any unilateral declaration of martial law would be subject to legal challenge.
While Congress authorized military force against the terrorists responsible for 9/11, it does not mention using military tribunals to prosecute terrorists. Despite the possibility of using military tribunals for such cases, lawmakers have voted in favor the military-style trials for terrorists. However, many House and Senate Judiciary Committees members expressed skepticism about the administration’s unilateral decision.
Although the Supreme Court has declared martial law 60 times, there is no legal precedent. Therefore, if Congress decides to declare martial law, the President would need congressional approval before doing so. And since the term has no clear definition, people have used it to describe various military actions. So, the concept of martial law is incredibly undeveloped. But if Congress decides that the President’s action exceeds his authority, he can be subjected to a court martial.
Enlisted personnel must consent to a trial by summary court-martial.
Under Articles 65, 66, and 69 of the U.S. Code, an enlisted person must consent to a trial by summary court-martial (SCM). If he refuses, the enlisted member is liable to be tried before a military tribunal. The military tribunal consists of a military judge and at least three officers who act as a jury. In addition, enlisted personnel can request a panel of at least one-third of enlisted service members or the judge alone.
The punishments for these types of infractions are far lower than those that would be imposed under a general or special court-martial. However, the maximum punishment for these crimes is lower than for the same infractions committed by an officer. Enlisted personnel in grades E-5 and above are not subject to such punishments. Additionally, a summary court-martial conviction is not considered a conviction in civilian society. To be eligible for a summary court-martial trial, the accused must consent.
Under Article 64 of the Code of Military Justice, the commander of a brigade, battalion, or independent company may convene an SCM. However, a division commander is the general convening authority for SCM. UCMJ must conduct the court-martial process. The SCM process is more efficient than a conventional court-martial, but enlisted personnel still have some rights.
Military rules of evidence are used during a trial.
The military rules of evidence are the same for a civilian court martial. They apply to a case where a person has been charged with a crime and faces court martial. A military judge may issue subpoenas for testimony and books or papers and may also order the arrest of an accused person. A judge may also sentence someone who refuses to answer a question.
During a trial when a president is court-martialed, military witnesses must be examined under oath or affirmation. P.A. 77-295 substituted a military judge for a law officer and amended Subsec. (a) by deleting the reference to “affirmation.” In addition, P.A. 89-221 added provisions requiring specified personnel to take an oath before performing specific duties, including associate defense counsel.
Sec. 27-186 prohibits the retrial of a defendant for the same offense. No person may be tried a second time in military Court for the same offense without the accused’s consent. No proceeding may be a second trial for the same offense, and a military court cannot hear a case in which the accused has already been found guilty.
The military judge presides over a trial when a president is court-martialed. The judge may consult with trial and defense counsel regarding the form of findings. However, a military judge cannot vote with the Court. During a trial when a president is court-martialed, a military judge may also refer to the convening authority.
Trump’s pardon of Bergdahl
While the United States is not a war zone, President Barack Obama’s pardon of Army Sgt. Bowe Bergdahl is a significant step toward ensuring his release. The alleged desertion charge stems from the 2009 escapade in which the sergeant walked away from his combat post in Afghanistan. The alleged desertion was later revealed to be a prisoner swap with the Taliban. During his capture, he was locked in a cage, often in darkness, and exposed to harsh conditions.
President Barack Obama’s pardon of Bergdahl could have resolved the case before the President took office. The pardon would have cleared Bergdahl of all charges before he was on trial and allowed him to move on with his life. During his presidential campaign, Trump called Bergdahl, a “no-good traitor,” and his attorneys argued that Trump’s comments violated his due process rights. Attorneys for Bergdahl posted a half-hour video on YouTube arguing that Trump had defamed his client inappropriately and amounted to “harassment.”
Obama’s pardon of Bergdahl was widely condemned and has prompted political outrage. Some Republicans blasted the pardon and accused the President of jeopardizing national security. Despite the pardon, the case is scheduled to begin in April. He faces charges of desertion and misbehavior before the enemy. If found guilty, Bergdahl faces life in prison.
Military commander’s role in the military justice
There is increasing debate over the role of the military commander in military justice. The military system places the commander as convening authority and has the power to decide how to resolve criminal matters under the Uniform Code of Military Justice. However, many critics argue that commanders are not equipped to make legal determinations in complicated criminal cases. Therefore, they claim that the military’s command structure should be reformed to ensure a more effective military justice system.
In addition to serving as an independent adjudicator, the commander’s role in military justice is not limited to military criminal cases. Non-service-connected crimes are also a topic of debate. For example, if supply specialist Smith were caught shoplifting jewelry and video game systems from a retail store, his chain of command would be a two or three-star general. However, he could not comment on the impact of the crime on command discipline, morale, or efficiency.
Discipline provides two primary functions to military organizations: obedience to orders ensures unit success and collective safety, and compliance with standards increases the efficiency of the military organization. By removing punishment from the commander, his influence in the military would be diminished, and his combat readiness would decline. In other words, the military commander’s role in military justice is critical. Let’s look at some of the main elements of military justice.