Constitutional Law: Military TribunalsThe Law Library of Congress is proud to present two constitutional law items focusing on Military Tribunals. The two articles are available in their entirety in PDF on our Web site.
Louis Fisher, "Military Commissions: Problems of Authority and Practice," 24 Boston U. Int'l L. J. 15 (2006). In deciding to authorize military commissions on November 13, 2001, President George W. Bush relied primarily on the Supreme Court's decision in Ex parte Quirin (1942). A close look at Quirin reveals a process and a decision with so many deficiencies that it should be remembered as a precedent not worth repeating. Other precedents cited by the administration for independent executive authority, including the trial of John Andre in 1780, are also misleading. Allowing military commissions to operate on the exclusive or "inherent" authority of the President poses a serious threat to basic constitutional principles, including the war prerogatives of Congress, separation of powers, and checks and balances.
Louis Fisher, "Detention and Military Trial of Suspected Terrorists: Stretching Presidential Power," 2 J. Nat'l Sec. L. & Policy 1 (2006). Although the Bush administration after the 9/11 terrorist attacks claimed independent authority to create military tribunals, Congress under the Constitution has primary responsibility over military courts, tribunals "inferior to the Supreme Court," "Offenses against the Law of Nations," the war power, and "Rules concerning Captures on Land and Water." This article covers the key differences between the German saboteur case of Ex parte Quirin (1942) and the Bush tribunals, the importance of the Non-Detention Act of 1971, and the litigation that challenged the Bush military tribunals, including the Supreme Court decisions of Hamdi v. Rumsfeld (2004) and Hamdan v. Rumsfeld (2006).
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