Sarah Mann

AP Gov

16 March 2010

 

Ex Parte Quirin

Decided July 31, 1942

 

 

Historical Context of Case:

 

 

The case of Ex Parte Quirin was decided in the midst of World War II, when the country was under intense stress.  One particular stress created by the war was the existence of many individuals in America who were considered a danger due to their foreign birth, their countries of origin, or their nationalities.  Another such stress was the threat of direct conflict in the United States by any number of the country’s enemies.  By 1942, the war had become global and a major effort was underway by the United States government to protect the citizens of America from its enemies.  Thousands of Japanese, German and Italian civilians living in this country were either deported or interned. It was within this context that Ex Parte Quirin arose, a case involving eight German citizens apprehended in the United States. 

 

 

During World War II, the government was forced, as well, to deal with legal questions that arose in the context of war.  Laws of war existed in 1942, and well before such time, as there are violations of laws of war just as there are violations of any rules of conduct and behavior.  The Constitution of the United States addresses violations of the laws of war, as well as the war powers available to Congress and the President.  These powers are divided, in a protective manner, so that neither Congress nor the Executive Branch may thrust the country into military conflict easily or rashly. 

 

 

In times of war, the Executive Branch of the United States government may seek the authorization of Congress to establish a military tribunal, or court, for addressing legal issues that arise and for trying enemy individuals who are alleged to have committed offenses in violation of the laws of war.  Unlike civil or criminal courts, in which the case is adjudicated by a judge or jury, these tribunals are judged by military officials.  When a defendant is tried before a military tribunal, he is not guaranteed the protections established by the Fourth, Fifth and Sixth Amendments.  Accordingly, defendants prefer to be tried in Article III courts, or criminal courts existing on United States territory (CRS Online).  There is likewise the possibility that a trial in a military tribunal does not afford a defendant the same degree of justice.

 

 

Relevant Precedent:

 

 

The highest court of this land has had very little to do or say regarding the war powers guaranteed by the United States Constitution.  In fact, the Supreme Court addressed the particular matter of the use of military tribunals within the United States on only one occasion prior to the Ex Parte Quirin case. 

 

 

The Supreme Court first examined this issue in 1866, in the case of Ex Parte Milligan.  The country had just been through the Civil War.  A citizen of the United States (and an attorney, no less!) who was living in Indiana was accused of conspiracy, alleged to have aided the Confederacy.  With the authorization of Congress, President Abraham Lincoln entered an order permitting Mr. Milligan to be tried by a military tribunal.  He in fact was charged, tried, and sentenced to hang. The Supreme Court was able to hear the case before the date set for Mr. Milligan’s execution.  The Court ruled that if civilian courts are operating, civilians must be tried in those courts rather than in military tribunals.  The Court further ordered that President Lincoln acted improperly by declaring martial law in the State of Indiana, because he simply did not have the authority or the right to do so. 

 

 

It was not until seventy-six years later, under circumstances far different, that the Supreme Court revisited the matter of military tribunals in this case, Ex Parte Quirin. 

 

 

Story Behind Ex Parte Quirin:

 

 

Quite a frightening scenario existed behind the tale of Ex Parte Quirin. On June 17, 1942, eight German Nazi saboteurs entered the United States in Porte Vedra Beach, Florida, having traveled by German submarine from the Reich.  They had evil intentions and malicious plans in mind.  These men had all been born in Germany and had all lived within the United States at some point in time.  Only one, petitioner Haupt, contended that he had become a citizen of the United States during his childhood, but the government took the position that Haupt’s allegiance was to his mother country.  During the war, all of these men were living in Germany and were being trained in the use of explosives.  When the men came ashore in Florida, they did so “with a supply of explosives, fuses and incendiary and timing devices” (Ex Parte Quirin).  They disposed of their military uniforms and dressed in civilian clothes, dispersing to various points in the country.  It was determined that these eight Nazis had planned to “destroy war industries and war facilities in the United States” (Ex Parte Quirin).  Fortunately, they were apprehended by the FBI before doing any harm.

 

 

President Roosevelt, in his capacity both as President and Commander of the Armed Forces, entered an order on July 2, 1942, appointing a Military Commission to try the petitioners for “(1) violation of the law of war; (2) violation of Article 81 of the Articles of War, defining the offense of relieving or attempting to relieve, or corresponding with or giving intelligence to, the enemy; (3) violation of Article 82, defining the offense of spying; [and] (4) conspiracy to commit the offenses alleged in charges 1, 2 and 3” (Ex Parte Quirin).  The President’s Order likewise included a proclamation declaring that individuals who are citizens of nations with which the United States is at war, who attempt to enter the country and are charged with warlike acts, espionage, etc, are subject to the jurisdiction of military tribunals and denied access to civil courts (Ex Parte Quirin). 

 

 

A military trial began, and in the midst, petitioners filed motions for leave to file petitions for habeas corpus to the United States District Court for the District of Columbia, which were denied.  A habeas corpus petition is a challenge made by an individual who claims that he is being detained or imprisoned unlawfully (Center for Constitutional Rights).   Petitioners then filed motions for leave to file petitions for habeas corpus to the United States Supreme Court. 

 

 

Composition of Court in 1942:

 

 

In 1942, Chief Justice Harlan Stone led the Supreme Court.  Fairly liberal in nature, he had a reputation for “judicial self-restraint” and preferred not to let “personal policy preference” impose on his judicial determinations (Oyez).  It was Justice Stone who delivered the opinion in Ex Parte Quirin, for it was a per curiam decision, meaning that it was a decision handed down by the Court as a whole rather than by a specific judge (US Legal Definitions).  It was specifically noted that Justice Murphy “took no part in the consideration or decision of these cases” (Ex Parte Quirin). 

 

 

Constitutional Question as defined by the Supreme Court:

 

 

The Supreme Court determined the constitutionality of President Roosevelt’s Order.  Specifically, the question for decision was “whether the detention of petitioners by respondent for trial by Military Commission, appointed by Order of the President of July 2, 1942, on charges preferred against them purporting to set out their violations of the law of war and of the Articles of War, is in conformity to the laws and the Constitution of the United States” (Ex Parte Quirin). 

 

 

Decision and Ramification:

 

 

The unanimous opinion issued in Ex Parte Quirin upheld the right of the petitioners to judicial review.  However, the Court did determine that the President was indeed authorized to order the trial of these individuals before a military tribunal and that the military tribunal was permitted by Congressional legislation.  The Court pointed to the fact that the Constitution confers upon the President not only the power to wage war, but to “carry into effect all laws passed by Congress for the conduct of war…and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war”  (Ex Parte Quirin).  The Court further determined that the petitioners had been justifiably charged with the offenses at issue and had been held in custody lawfully.  In making its ruling, the Court distinguished between “lawful” and “unlawful” combatants in times of war.  While lawful combatants may be captured and held as prisoners of war, unlawful combatant face harsher circumstances.  According to the Court’s ruling, “unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful” (Ex Parte Quirin). 

 

 

The Court declined to decide whether a presidential order for an individual to be tried by a military commission would be constitutional absent Congressional action.  The Court also distinguished this case from Ex Parte Milligan, which had barred military trials of violations of the law of war when local state courts were in operation, because Milligan was not an enemy belligerent as were the German petitioners in this matter.

 

 

At the time of the decision in the case of Ex Parte Quirin, there was likely no real debate by the American public as to the logic and the necessity of the Court’s determination.  Many, many years later, this decision would impact the trial of suspected terrorists.  On November 13, 2001, President Bush signed a Military Order regarding the detention, treatment and trial of non-citizens in the war against terrorism (Military Order), and within that order it was declared that individuals who have “engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor….” would be subject to “be tried by military commission” (Military Order).  It was not until 2006, in the matter of Hamdi v. Rumsfeld, that the Supreme Court would once again examine the use of tribunals, this time for people detained at Guantanamo Bay. 

 

 

Position on Opinion:

 

 

I agree with the Court’s decision in Ex Parte Quirin, because I believe that the Constitution provides for certain war powers and in this instance President Roosevelt acted within the confines of these powers.  I further believe that the President’s responsibilities in the time of war require that he deal with the enemy in such a way as to guarantee national security.  I question the extent to which the laws of war were meant to protect the enemy, rather than put into place for the sole purpose of protecting United States civilians.  I am not troubled in the least that the Nazis of the Ex Parte Quirin case, not citizens of this country and interested in causing nothing but harm, were seemingly denied “constitutional” rights, as they were the terrorists of the time, seeking to sabotage the United States and its war efforts. 

 

 

WORKS CITED

 

 

“What is Habeas Corpus” Center for Constitutional Rights.

http://www.ccrjustice.org/learn-more/faqs/faqs-what-habeas-corpus.htm (16 March 2010).

 

 

“Ex Parte Milligan”

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/milligan.html(16 March 2010).

 

 

“Ex Parte Quirin”  http://www.law.emkc.edu/faculty/projects/ftrials/conlaw/quirin.html

            (16 March 2010).

 

 

“Military Order of November 13, 2001” http://www.fas.org/irp/offdocs/eo/mo-                      

111301.htm (16 March 2010).

 

 

“Military Tribunals”

http://www.crsonline.law.ucla.edu/index.php?title=Encyclopedia/Collections/internment_Terror.html (16 March 2010).

 

 

“Harlan F. Stone” The Oyez Project. http://www.oyez.org/justices/harlan_f_stone.html

            (16 March 2010).

 

 

“US Legal Definitions” http://www.definitions.uslegal.com/p/per-curiam.htm (16 March 2010).