Military Tribunals and Presidential Power: American Revolution to the War on Terrorism

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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.

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Product Details

  • ISBN-13: 9780700613762
  • Publisher: University Press of Kansas
  • Publication date: 4/28/2005
  • Edition description: New Edition
  • Pages: 294
  • Product dimensions: 6.00 (w) x 9.00 (h) x 0.66 (d)

Table of Contents


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




-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


Index of Cases

Subject Index

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