Bigelow opened his brief with a critique of Article of War 62,
Bigelow argued that Article of War 62 should not be invoked,
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.
Dating back to Article of War 15 crafted by Judge Advocate General Crowder, Congress took note of the law of war in this manner: "The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.
Regarding Charge III about spying, Dowell insisted that the tribunal was bound by the regulation that explained Article of War
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 .
19) 1890 INSTRUCTIONS, supra note 4, at 19 (citing 88th Article of War
, reprinted in WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 205 (2d ed.
The question is important for the reason that if applicable, alleged war criminals would be entitled to assert a privilege against self-incrimination under Article of War
24, testimony by deposition could not be adduced against their consent under Article of War
25, and the reviewing or confirming authority would be required to refer the record of trial to his staff judge advocate or The Judge Advocate General before acting thereon under Article of War