LOUIS FISHER. Military Tribunals and Presidential Power: American Revolution to the War on Terrorism. Lawrence: University Press of Kansas. 2005. Pp. xiv, 279. Cloth $35.00, paper $16.95

Abstract

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. Fisher's comprehensive work examines military tribunals created by the United States and develops as its central theme that a “concentration of military power in the hands of the executive branch, without effective legislative and judicial checks” poses a major threat to individual rights and liberties particularly in times of war when presidential power may be at its zenith (p. xii). In his first chapter, the author examines war power and the distinction between the authority of the Congress and the executive arising from the Constitution of 1787 as compared to the King's prerogative under British precedents. Arising from discussion in Federalist 69 by Alexander Hamilton, the Helvidius/Pacificus debate concerned whether President George Washington had the power, on his own authority, to issue a proclamation of neutrality with respect to the war between Britain and Jacobin France in 1793. Pacificus's (Hamilton) central argument was that the commander-in-chief provision of Article II is a grant of power and by inference there are other powers that are implied in the general grant of authority including control over the direction of foreign policy, which is inherently an executive function. Helvidius (James Madison) responded that the right to determine foreign policy of the United States is with Congress by virtue of its power to declare war, and if the president's proclamation was valid, it took from Congress the power to decide between war and peace, a conclusion manifestly at variance with Congress's possession of the war declaring power. The proclamation therefore was not valid, nor was the conception of the presidential power on which it was based, a constitutionally tenable one.