Washington's Tribunals

Brian L. Beirne, Yale Law School


Establishing that the Framers understood Washington to be the model for the Commander-in-Chief Clause, this Article uses an originalist approach to advance contemporary debate regarding military tribunals. In analyzing the legality of the Bush Administration’s actions based upon the war powers of the United States’ first commander in chief, this Article uses extensive primary source materials to detail the functioning of American military courts under General George Washington. It uncovers evidence of the Executive’s obligation to turn American citizens over to civilian courts. At the same time, it also finds original intent support for the President’s power to convene military tribunals for foreign enemy combatants without Congressional authorization. This approach’s startling conclusions have profound implications for contemporary debate.