|Prof. Steven Vladeck|
Prof. and Associate Dean Steven Vladeck of American University Washington College of Law has posted a characteristically insightful essay on Military Courts and Article III, which will appear in the Georgetown Law Journal. His own summary appears in this post on Just Security:
[I]n a nutshell, the paper offers three different contributions to the (surprisingly sparse) literature on the subject: (1) notwithstanding repeated assertions to the contrary by courts and commentators, the “military exception” to Article III is analytically incoherent–and has been for some time; (2) the incoherence has been exacerbated by three recent expansions to the scope of military jurisdiction–the abolition of the “service connection” test for courts-martial of servicemembers; the expansion of court-martial jurisdiction over civilian contractors; and the codification of military commission jurisdiction over offenses not recognized as international war crimes–and (3) the Supreme Court’s jurisprudence regarding military commissions offers one potential (albeit controversial) basis for restoring coherence to the military exception, by re-conceiving the departure from Article III as authorized only for offenses and offenders subject to trial by military court under international law.