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Military Tribunals and Presidential Power

Military Tribunals and Presidential Power

American Revolution to the War on Terrorism

by Louis Fisher

Sales Date: April 2005

294 Pages, 6.00 x 9.00 in

Paperback
9780700613762
Published: April 2005

$29.99

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eBook
9780700639205
Published: April 2005

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Winner: Richard E. Neustadt Award

In wartime, presidents are always tempted to expand their authority. But in doing so, they often reach beyond their constitutional mandate.

Although the use of military tribunals can be necessary and even effective in times of war, Louis Fisher contends that these courts present a grave danger to open government and the separation of powers. Citing the constitutional provision vesting Congress with the authority to create tribunals, Fisher addresses the threats posed by the dramatic expansion of presidential power in time of war—and the meek efforts of Congress and the judiciary to curb it.

Military Tribunals and Presidential Power is the only book to offer detailed and comprehensive coverage of these extra-legal courts, taking in the sweep of American history from colonial times to today’s headlines. Focusing on those periods when the Constitution and civil liberties have been most severely tested by threats to national security, Fisher critiques tribunals called during the presidencies of Washington, Madison, Jackson, Lincoln, Andrew Johnson, Wilson, Franklin Roosevelt, and Truman. He also examines other presidential actions that present military justifications to augment political power, such as suspending the writ of habeas corpus, invoking martial law, and using courts-martial to try U.S. citizens.

Fisher also analyzes how the Bush administration relied heavily on precedents set in World War II-notably the Supreme Court’s opinion regarding Nazi saboteurs, Ex parte Quirin, a case shown in recent times to have been a rush to judgment. He scrutinizes the much-publicized cases of John Walker Lindh, Yaser Esam Hamdi, Jose Padilla, Zacarias Moussaoui, and the Guantanamo detainees to reveal how the executive branch has gone far beyond the bounds of even Quirin, and he suggests that it is short-sighted to believe that what was only tolerable half a century ago should be accepted as a given today.

Fisher’s primary concern is to show that the breadth of presidential power in time of war comes at the cost of legislative and judicial control—and that military tribunals represent a concentration of power in the executive branch that the United States would be quick to condemn in other countries. His book cuts to the bone of today’s controversies and sounds an alarm for maintaining the checks and balances we value as a nation.

"It is generally recognized that William Winthrop, author of Military Law and Precedents (1896), was the foremost nineteenth-century authority on military law and military tribunals. It could very well be stated that with this book, Louis Fisher has assumed that well-deserved distinction for the twentieth century."—American Historical Review
"Fisher’s highly readable and engaging account is the indispensable introduction."—Political Science Quarterly
"Brings together much valuable information, and Fisher, an accomplished author with more than a dozen books to his credit, tells an interesting story."—Journal of Military History
"Regardless of the reader’s political affiliation, this book is a worthwhile read for citizens mindful of the direction of civil rights in American and throughout the world, particular in the post-Sept. 11 era. The author’s logical choice of historical anecdotes provides a compelling narrative for all, but will likely be particularly enlightening for history buffs and students of constitutional law alike."—New York Law Journal
“We are in Fisher’s debt once again. His riveting account is at once authoritative and invaluable as a guide to the perplexing problem of coping with real and imagined terrorism in our time. Superb.”—Stanley Kutler, author of Abuse of Power
“Exhaustively researched and superbly well written, Fisher’s book is a ‘must read’ for any serious student of presidential power in time of war. It also could not be more timely.”—Scott L. Silliman, Executive Director, Duke University Center on Law, Ethics and National Security
“Without a doubt the definitive guide to the strange history of military justice during wartime.”—David Cole, legal affairs correspondent for The Nation and author of Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism

Preface

1. The Law of War

-Articles of War

-British Articles of War

-Military Justice in the Colonies

-The War of Independence

-Trial of Major Andre

-Congressional Oversight

-The War Power Transformed

2. American Precedents

-Constitutional Powers

-Statutory Framework

-Andrew Jackson in New Orleans

-Arbuthnot and Ambrister

-The Mexican War

-Judicial Supervision

-Scope of Executive Authority

3. The Civil War

-Lincoln’s Emergency Actions

-Suspending Habeas Corpus

-Martial Law in Missouri

-Procedural Checks

-Laws Recognizing Tribunals

-The Dakota Trials

-Monitoring the Courts

-John Merryman

-Clement Vallandigham

-The Milligan Case

-Other Judicial Rulings

-Spotlight on Andersonville

-Conspirators of Lincoln’s Assassination

-Clemency for Surratt

-Samuel A. Mudd

4. Codes of Modern Warfare

-Lieber's Code

-General Orders, No. 100

-Military Tribunals

-Lieber’s Legacy

-Occupation of the Philippines

-The Hague Treaties

-Revising the Articles of War

-Military Trials for Civilians?

-Lothar Witzke Crosses the Border

5. Nazi Saboteurs

-Training for Terrorism

-Why a Tribunal?

-Roosevelt’s Proclamation

-Tribunal Proceedings

-Appeal to the Civil Courts

-Writs of Habeas Corpus

-Rules of Procedure

-The Per Curian

-Finishing Up

-Six Executions

-Drafting the Full Opinion

-Evaluating the Decision

-Frederick Bernays Wiener

-Later Assessments

-The Fate of Confederates

-Another Submarine in 1944

6. Other World War II Tribunals

-Martial Law in Hawaii

-Hans Zimmerman

-Restoring Some Civil Functions

-Glockner and Seifer

-White, Spurlock, and Duncan

-Treatment of Japanese Leaders

-Yamashita

-Homma

-Hirota

-Command Responsibility

-Gaetano Territo

-The Eisentrager Decision

-Placing Limits on Military Courts

-Detlef Tiede

-An Occupation Court

-No Constitutional Rights?

-Insisting on a Jury Trial

- A Final Confrontation

7. 9/11: A Nation at War

-Bush’s Military Order

The Advocates

-The Critics

-Congressional Hearings

-International Resistance

-ABA Task Force

-DOD Regulation

-List of Crimes

-The Appeals Process

-Recruiting Defense Counsel

-Selecting the Defendants

-Charging Detainees

-Treatment of Prisoners

-Departmental Infighting

-Abu Ghraib

-Agency Legal Analysis

8. Judicial Process Against Terrorists

-Relying on Civilian Courts

-Moussaoui in Civil Court

-The Charges

-Moussaoui Represents Himself

-Right of Confrontation

-Waiting for a “Final Decision”

-Searching for a Compromise

-“Enemy Combatants”

-Yaser Esam Hamdi

-Judicial Deference

-Not So Fast, Mr. Bush

-Jose Padilla

-Access to Counsel

-The Second Circuit

-Comey's Statement

-The Court Ducks

Guantanamo Detainees

-In the D.C. Circuit

-The Ninth Circuit

-Releasing Detainees

-Prosecutorial Abuse

-Access to Federal Courts

-The Government’s Response

9. Conclusions

Bibliography

Index of Cases

Subject Index

Books

Authors

On The Site

Military Tribunals and Presidential Power

American Revolution to the War on Terrorism

Military Tribunals and Presidential Power

American Revolution to the War on Terrorism

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