Bigelow argued that Article of War 62 should not be invoked,
not cognizable under any other Article of War. (334) He further asserted
The government charged the saboteurs with violating the law of war; Article of War 81, relieving intelligence to the enemy; and Article of War 82, spying.
Rather than attempting to limit the President's authority to appoint military commissions, Congress recognized and sanctioned this authority in Article of War 15.
He was charged with violation Article of War 82: "Any person who in time of war shall be found lurking or acting as a spy in or about any of the fortifications, posts, quarters, or encampments of any of the armies of the United States, or elsewhere, shall be tried by a general court-martial or by a military commission, and shall, on conviction thereof, suffer death." Two-thirds of the tribunal--a sufficient number--found him guilty.
He first pointed to language in Article of War 38 that authorized the President, by regulation, to prescribe the procedure for cases before courts-martial, courts of inquiry, military commissions, and other military tribunals, but "nothing contrary to or inconsistent with these Articles shall be so prescribed." (268) Royall told the Court that Article 38 directed the President to prescribe the rules of procedure.
Brannon (9 July 1951) (Allied Papers); NME Form 219, Petition for New Trial Under Article of War
53, Albert C.
After Royall found no challenge for cause, his co-counsel Dowell stood up and asked for one peremptory challenge, as allowed under the 18th Article of War for a court martial.
Regarding Charge III about spying, Dowell insisted that the tribunal was bound by the regulation that explained Article of War 82.
When Congress incorporated the Articles of War into the UCMJ in 1950, it included Article of War 15, "Jurisdiction of courts martial not exclusive", as Article 21 of the UCMJ to "preserve existing Army and Air Force law which gives concurrent jurisdiction to [other] military tribunals ...".
On that same day, the President issued a Military Order appointing a commission of seven general officers to try the named defendants for "offenses against the law of war and the Articles of War." (166) The order cited the President's authority as President and Commander in Chief, the Constitution and statutes of the United States, and specifically Article of War 38.