Abstract
Abstract Through the enactment of the Uniform Code of Military Justice (UCMJ) following World War II, the US codified a requirement that the military was required to prosecute captured enemy belligerents through a process identical in all but name to that used to prosecute its own service members. This equivalency requirement was conditioned on a presidential determination of practicability. Following the September 11 terrorist attacks, President George W. Bush determined the equivalency requirement was not practicable, thus diverging internal and external prosecutions. Internal prosecution refers to the United States prosecuting its own service members at a court-martial for wartime misconduct, which violates the UCMJ. External prosecution refers to the United States prosecuting enemy belligerents at a military commission for wartime misconduct, which violates the Military Commissions Act of 2009. This chapter compares how the US military has conducted internal versus external military prosecutions over the last twenty years. Ultimately, this chapter concludes that while removing the equivalency requirement has not yet yielded maximum disparities between external and internal prosecutions, relying solely on individual discretion for punishment is ill-advised.
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