George Fletcher

Recent Articles

The Military Tribunal Debate:

See George P. Fletcher's original article " War and the Constitution ." From the February 11, 2002 letters section: War and the Constitution Under existing law, President George W. Bush has the legal authority to use military commissions to try certain suspected terrorists for violations of the law of war. In arguing otherwise, George P. Fletcher makes numerous blunders ["War and the Constitution," January 1–14, 2002]. The key decision is Ex parte Quirin (1942), in which the Supreme Court upheld President Roosevelt's decision to use military commissions to try German saboteurs who had landed on Long Island. The Court concluded that Congress had authorized use of commissions to try violations of the law of war. The Court held that the saboteurs had violated that law, and hence were "unlawful combatants," because they entered the country secretly, without uniform, and with the intent to destroy property. The Court emphasized that unlawful combatants could be treated differently from...

War and the Constitution

T he media are awash in disinformation about military tribunals. Since November 13, when President George W. Bush issued his controversial executive order mandating the use of military commissions to prosecute suspected terrorists, one far-fetched claim of law has followed another. The president's lawyers have every right to put the best possible light on their plans for sidestepping the criminal courts. My problem is with the academic lawyers whose offhand opinions fill the op-ed pages and the ears of Congress. Their din reached its climax when two important legal scholars -- Laurence Tribe of Harvard and Cass Sunstein of the University of Chicago -- testified as "liberals" before the Senate Judiciary Committee that Bush's tribunals would be compatible with the Constitution. Of course, everybody these days is responding under pressure, but the law professors have been giving "shooting from the hip" a bad name. Any serious examination of the sources -- statutes and Supreme Court cases...