100, Official Records, War Rebellion (Apr. 14) did not prevent President Lincoln from promulgating, in April, 1863, a code of rules to govern the conduct in the field of the armies of the United States, which was prepared at his instance by a commission headed by Francis Lieber and which later became the basis of all similar codifications both here and abroad. Similarly, the power of Congress to “make rules for the government and regulation of the land and naval forces” (Art. Such rules and regulations are, moreover, it seems, subject in wartime to his amendment at discretion. Indeed, until 1830, courts-martial were convened solely on the President’s authority as Commander in Chief. 233, 234 (Attorney General Wirt stating the contrary view). The President is the ultimate tribunal for the enforcement of the rules and regulations that Congress adopts for the government of the forces, and that are enforced through courts-martial. As to temporarily occupied territory, see Dooley v. though he may govern recently acquired territory until Congress sets up a more permanent regime. He may not, however, effect a permanent acquisition of territory, 8 Footnote Fleming v. 1742 and President Wilson’s Fourteen Points, which were incorporated in the Armistice of November 11, 1918. the Protocol of August 12, 1898, which largely foreshadowed the Peace of Paris, 30 Stat. By the same warrant, he may bring hostilities to a conclusion by arranging an armistice, stipulating conditions that may determine to a great extent the ensuing peace. He may also requisition property and compel services from American citizens and friendly aliens who are situated within the theater of military operations when necessity requires, thereby incurring for the United States the obligation to render “just compensation.” 6 Footnote Mitchell v. He may, at least with the assent of Congress, authorize commercial intercourse with the enemy. He may employ secret agents to enter the enemy’s lines and obtain information as to its strength, resources, and movements. In the absence of attempts by Congress to limit his power, he may establish and prescribe the jurisdiction and procedure of military commissions, and of tribunals in the nature of such commissions, in territory occupied by Armed Forces of the United States, and his authority to do this sometimes survives cessation of hostilities. “He may invade the hostile country, and subject it to the sovereignty and authority of the United States.” 2 Footnote Fleming v. As against an enemy in the field, the President possesses all the powers which are accorded by international law to any supreme commander. 1 Footnote For a review of how several wartime Presidents have operated in this sphere, see The Ultimate Decision: The President As Commander In Chief (1960). Lincoln early in 1862 issued orders for a general advance in the hopes of stimulating McClellan to action Wilson in 1918 settled the question of an independent American command on the Western Front Truman in 1945 ordered that the bomb be dropped on Hiroshima and Nagasaki. While the President customarily delegates supreme command of the forces in active service, there is no constitutional reason why he should do so, and he has been known to resolve personally important questions of military policy. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. ArtII.S2.C1.1.13 The President as Commander of the Armed Forces
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