The Constitution vests in Congress the power to “constitute Tribunals inferior to the
supreme Court,” to “make rules for the Government and Regulation of the land and
naval Forces,” and to “define and punish Piracies and Felonies committed on the high
Seas, and Offences against the Law of Nations.” By enacting Articles of War,
Congress defined not only the procedures but also the punishments to be applied to
the field of military law.
General Andrew Jackson resorted to military tribunals on two occasions: during
the War of 1812 and while commanding troops in Florida in 1818. Both exercises
of authority were highly controversial and led to responses by federal courts and
Congress.
During the War of 1812, Jackson invoked martial law when he commanded
American forces at New Orleans. On December 15, 1814, anticipating a British
invasion of the city, he issued a statement alerting residents to “his unalterable
determination rigidly to execute the martial law in all cases which may come within
his province.”35 The general order for martial law was released the next day,
requiring anyone entering the city to report to the Adjutant GeneralÂ’s office. Anyone
found in the streets after 9 p.m. “shall be apprehended as spies and held for
examination.”
After JacksonÂ’s victory over the British, the citizens of New Orleans expected
him to rescind the order for martial law. However, Jackson continued to wait until
he received word that peace negotiations underway at Ghent were complete. An
article in the local newspaper by Louis Louallier insisted that persons accused of a
crime should be heard before a civil judge, not military tribunals, and called
Jackson’s policy “no longer compatible with our dignity and our oath of making the
Constitution respected.”37 Jackson had him arrested on March 5, 1815, for inciting
mutiny and disaffection in the army. LouallierÂ’s lawyer went to U.S. District Judge
Dominick Augustin Hall to request a writ of habeas corpus, which the judge granted
after concluding that martial law could no longer be justified.
Military tribunals were used by General Winfield Scott during the war against
Mexico, when American forces found themselves in a foreign country without a
reliable judicial system to try offenders. He was concerned particularly about the
lack of discipline and misconduct among American volunteer soldiers. Before he left
Washington, D.C., to assume command, he drafted an order calling for martial law
in Mexico for both American soldiers and Mexican citizens. He showed the draft
order to Secretary of War William Marcy and Attorney General Nathan Clifford.
Neither official expressed disapproval or opposition.
http://www.fas.org/irp/crs/RL32458.pdf
A little history on the subject.