In Ex Parte Quirin (1942) the U.S. Supreme Court justified the trial by military commission of eight German soldiers “captured” on American soil. Edward S. Corwin called the case “a ceremonious detour to a predetermined goal” (Total War and the Constitution, 1947). Louis Fisher notes the “common perception … that Quirin was a contrived decision without anchoring itself in any legal precedent” (“Military Commissions,” Boston University International Law Review). Dissenting in Hamdi (2004), Justice Antonin Scalia wrote that Quirin was not the Court’s “finest hour.” Quirin was little cited until lawyers under George W. Bush embraced it to justify their treatment of suspected terrorists, a maneuver that finally made it important. In Hamdi and Rasul (2004) the Court revisited Quirin to rationalize its deference to executive power and for other purposes.
In June 1942, U-boats dropped off eight German soldiers on the East Coast, four near New York City and four near Jacksonville. Abandoning their uniforms, they went inland under orders to find targets for sabotage. Two U.S. citizens were among the saboteurs. One of the German-Americans, Ernest Peter Burger (who hated the German government) and the team leader, George John Dasch, agreed to abort the mission by informing U.S. authorities, which they did soon after landing in New York. Naturally, J. Edgar Hoover credited the FBI with clever sleuthing.
A lower federal court had the case in hand when Franklin Roosevelt — strongly opposed to trial in a normal court — established a special military commission. The administration pressured the Supreme Court and directly tampered with the case. Jonathan Turley writes, “The level of collusion, dishonesty, and prejudice that appeared in the Supreme Court may be unrivalled in its history.” The Court upheld the commission’s legality in a per curiam order of July 31, 1941, saying it would publish its full opinion later. Turley calls the ensuing military trial “a sham proceeding in which command influence was openly applied and rules of evidence discarded.” By the time the Court’s final judgment appeared, six prisoners had been electrocuted (a typical American barbarity) and Burger and Dasch sentenced to life imprisonment. (See Jonathan Turley, “Art and the Constitution,” Cato Supreme Court Review.)
The decision itself
Turley characterizes the Court as achieving “the preferred outcome and then desperately searching for a methodology or theory to justify it.” Andrew Kent suggests that the Court mildly rebuked the president because several pro–New Deal justices feared presidential overreach and renewed attacks on the Court (“Judicial Review for Enemy Fighters,” Vanderbilt Law Review). Even allowing for executive pressure, Justice Harlan F. Stone’s opinion in Quirin seems unusually jumbled. With little textual guidance on hand, earlier friends of war powers had long ransacked American history looking for usable unwritten legal principles. Because Quirin preserved such discoveries, the history was not very good and assertions resting on it probably do not succeed in shoring up its weak structure.
Roosevelt’s commission had tried the prisoners for “offenses against the law of war and the [U. S.] Articles of War” (#81, aiding or communicating with the enemy, and #82, “defining the offense of spying”) and conspiracy to commit the offenses. Affirming the commission’s legality, the Court reiterated its right of review. A history of U.S. wars and courts martial ensued, relating the commission’s actions to some supposed American “common law” of war.
Violations of the “laws of war” (Stone wrote) “distinguished” the saboteurs’ case from f (1866). Without uniforms and insignia, the defendants were “unlawful belligerents” and this fact established the military commission’s jurisdiction. Despite never actually sabotaging anything, they had entered U.S. territory with “hostile purpose.” (This point seems intended to justify ruling out civil treason trials for German-Americans Haupt and Burger and, for the six others, similar trials involving breach of temporary allegiance.)
Under the Fifth Amendment (Stone continued) defendants in courts martial do not enjoy presentment by grand jury, and therefore, those defendants could not have any jury when tried by military commission. (Note the conflation of courts martial and military commissions.) Like American military personnel, they had almost no rights. After discussing dead Revolutionary War spies, Stone’s opinion left military commissions unscathed but somewhat tangential to the Constitution. Stone asserted “that the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission” (italics added). Civil War material cluttered the Notes, with numerous “spies” “lurking” until dispatched by military commissions.
An original understanding
But “whatever authority” was the whole point. For perspective, let us canvass here the views of the famous Maryland lawyer Reverdy Johnson, senator (1845-1849) and U.S. attorney general (1849-1850). In June 1865 he was acting as counsel for Mary Surratt, accused of aiding the assassins of Abraham Lincoln. Andrew Johnson had created a military commission for earliest disposal of the accused. Reverdy Johnson, a War Democrat and Unionist, denied the commission’s jurisdiction and its right to exist.
