Military Tribunals and Presidential Power

[Dave Monroe]

Fisher, Louis.  Military Tribunals and Presidential
   Power: American Revolution to the War on Terrorism.
   Lawrence: U P of Kansas, 2005.

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 book cuts to the bone of current
controversies and sounds an alarm for maintaining the
checks and balances we value as a nation.

http://www.kansaspress.ku.edu/book6.html

Thoreen, David.  "The President's Emergency War Powers
   and the Erosion of Civil Liberties in Pynchon's
   Vineland."  Oklahoma City University Law Review
   Vol. 24, No. 3 (1999): 762-98.

http://tarlton.law.utexas.edu/lpop/etext/okla/thoreen24.htm


		
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