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Difference Between Court-Martial and Military Tribunal

Posted by Ernesto Gapasin | Oct 26, 2015 | 0 Comments

Courts-martial and military tribunals are both courts of justice, and they are both used by the United States military. Although they are similar in name and function, each type of court is used for a specific purpose. A court-martial, as you may already know, is simply a military court used to determine the guilt of members of the armed forces who are subject to military law. A military tribunal, on the other hand, is designed to try members of enemy forces during wartime. Is this the only difference between court-martial and military tribunal? Of course not!

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Difference Between Court-Martial and Military Tribunal

Military Tribunals

Military tribunals were born out of necessity. Operating outside the realm of conventional criminal and civil courts, they are unique proceedings in which enemy forces are tried during times of war or rebellion. Military commissions are a form of military tribunal, though the terms are sometimes used interchangeably. Tribunals only try members of enemy armies, not civilians who have allegedly broken the law (though sometimes civilians accused of being combatants are tried in a tribunal). Military officers, fulfilling the role of jurors, act as judges and impose the sentence.

The Differences

First, of course, as we mentioned above, the basic purpose and definitions of courts-martial and tribunals are different. Additional differences include the following:

  • Courts-martial include a preliminary investigation, which often includes a hearing before an investigating officer. Tribunals do not.
  • In tribunals, Miranda-type warnings and search warrants are not required. In addition, evidence obtained by torture or cruel, inhuman, or degrading treatment is excluded from the trial.
  • Courts-martial are governed by the Manual for Courts-Martial. Commissions are governed by the Manual for Military Commissions.
  • In a court-martial, the accused may hire counsel at no cost to the government. The accused may also do this in a tribunal, but the right is subject to certain limitations. For example, the civilian counsel must be a United States citizen and admitted to the practice of law in the United States, amongst other qualifications.

Finally, where courts-martial are generally not very controversial, military tribunals are. Although they have been used throughout American history, going all the way back to the American Revolution, they raise both constitutional and legal questions. Should they be used at all? Do they suffer a lack of due process? Should a tribunal be allowed to act in secret? Are tribunals necessary under the circumstances?

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Although it's important to know what military tribunals are and how they work, citizens of the American armed forces do not have to worry about being tried under a tribunal. They can only be tried in a court-martial.

If you or someone you know is preparing for a court-martial, contact the top-quality lawyers at Newsom & Gapasin. Whether you're under investigation or facing a court-martial, our experienced and aggressive law firm would be happy to help. We focus on winning tough cases, some of which have been reported on by national media outlets like CNN, Fox News, Time, the Washington Post, and the New York Times. For more information, please give us a call at 1-(888) 919-8265 , send an e-mail to [email protected], or click here to contact us online. We look forward to hearing from you!

About the Author

Ernesto Gapasin

Attorney

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