chapter  4
Military Tribunals or Civilian Prosecution: The Dilemma of Unlawful Enemy Combatants
Pages 28

Over the centuries Europeans, and later the Americans, instituted rules, laws and

mechanisms to address certain forms of violence by soldiers, guerillas, terrorists

and those under military occupation. In the United States, a fairly well developed

body of law evolved to govern the activities of its soldiers and civilian support

personnel in both wartime and peacetime. In addition, treaties addressed the

treatment of those held by the military pursuant to armed conflict. As twenty first

century America grapples with an increasingly amorphous yet sophisticated

terrorist threat, it is illuminating to examine the evolving role of military and

civilian courts and laws in our history and their relationship to due process and

civil liberties during times of conflict. The Supreme Court noted in a recent case

involving a Guantanamo detainee that military tribunals, other than standard

courts-martial, have emerged during three situations. First, military tribunals

have been conducted in lieu of civilian courts during times of martial law.