FDR convened his tribunal in total secrecy and when the NAZI's lawyer petitioned for a writ, FDR gathered the Supremes post haste, not Congress. Was FDR's tribunal convened by the judiciary or the military?
Would you provide some source that speaks to who actually ordered the tribunal in 1942?
Would you provide some source that speaks to who actually ordered the tribunal in 1942?
Certainly.
First, let's get our terms straight. FDR had authority to convene the tribunal -- the executive branch always does that.
The issue regards the nature of the tribunal and the source of its creation.
The tribunal at issue in FDR's day was not created by Presidential decree. Rather it was created by Congress. The following excerpt is from the Supreme Court case of Ex Parte Quirin, 317 US 1:
By the Articles of War, 10 U.S.C. 1471-1593, 10 U.S.C.A. 1471- 1593, Congress has provided rules for the government of the Army. It has provided for the trial and punishment, by courts [317 U.S. 1, 27] martial, of violations of the Articles by members of the armed forces and by specified classes of persons associated or serving with the Army. Arts. 1, 2. But the Articles also recognize the 'military commission' appointed by military command as an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by court martial. See Arts. 12, 15. Articles 38 and 46 authorize the President, with certain limitations, to prescribe the procedure for military commissions. Articles 81 and 82 authorize trial, either by court martial or military commission, of those charged with relieving, harboring or corresponding with the enemy and those charged with spying. And Article 15 declares that 'the provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions ... or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be triable by such military commissions ... or other military tribunals'. Article 2 includes among those persons subject to military law the personnel of our own military establishment. But this, as Article 12 provides, does not exclude from that class 'any other person who by the law of war is subject to trial by military tribunals' and who under Article 12 may be tried by court martial or under Article 15 by military commission.
In short, FDR was merely executing the laws enacted by the legislature. And, at the end of the day, the Judiciary had the final say on the verdict of the accused.
In this case, the Executive branch has enacted the law, and the executive branch has the final say on the verdict of the accused.