Ex parte Quirin
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| Ex parte Quirin | |||||||||||||
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| Argued July 29 – 30, 1942 Decided July 31, 1942 |
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| Holding | |||||||||||||
| The Court upheld the jurisdiction of a United States military tribunal over the trial of several German saboteurs in the United States. | |||||||||||||
| Court membership | |||||||||||||
| Chief Justice: Harlan Fiske Stone Associate Justices: Owen Josephus Roberts, Hugo Black, Stanley Forman Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, Robert H. Jackson, Wiley Blount Rutledge |
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| Case opinions | |||||||||||||
| Per curiam. Majority by: Stone Murphy took no part in the consideration or decision of the case. |
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| Laws applied | |||||||||||||
| U.S. Const. | |||||||||||||
Ex parte Quirin, is a Supreme Court of the United States case that upheld the jurisdiction of a United States military tribunal over the trial of several Operation Pastorius German saboteurs in the United States. Quirin has been cited as a precedent for the execution of any unlawful combatant against the United States.
It was argued July 29 and July 30, 1942 and decided July 31, 1942 with an extended opinion filed October 29, 1942.
This decision states:
- "…the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. 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. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."
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[edit] Background
The eight men involved in the case were Ernest Burger, George John Dasch, Herbert Hans Haupt, Heinrich Heinck, Edward Keiling, Herman Neubauer, Richard Quirin and Werner Thiel.
All were born in Germany and all had lived in the United States. All returned to Germany between 1933 and 1941. After the declaration of war between the United States and the German Reich, they received training at a sabotage school near Berlin, where they were instructed in the use of explosives and in methods of secret writing.
Burger, Dasch, Heinck and Quirin traveled from occupied France by submarine to Long Island, New York, landing in the hours of darkness, on or about June 13, 1942. The remaining four boarded another German submarine, which carried them down the Atlantic coast to Ponte Vedra Beach, Florida. On or about June 17, 1942, they came ashore during the hours of darkness. All eight wore full or partial German uniforms, to ensure treatment as prisoners of war should they be captured on landing. The two groups promptly disposed of uniforms and proceeded in civilian dress to New York City and Jacksonville, Florida, respectively, and from there to other points in the United States. All had received instructions in Germany from an officer of the German High Command to destroy war industries and war facilities in the United States, for which they or their relatives in Germany were to receive salary payments from the German Government.
Upon landing, two of the Germans (Dasch and Burger) turned themselves in to the Federal Bureau of Investigation (with no small difficulty because, embarrassingly, the FBI refused at first to believe them). They finally convinced the FBI that they were telling the truth and the remaining six were taken into custody in New York or Chicago, Illinois by agents of the FBI.
[edit] Trial
President Franklin D. Roosevelt convened a secret military tribunal on July 2, 1942 which sentenced the eight men to death.[1] The President later commuted the death sentences of Dasch and Burger, as they had both confessed and assisted in capturing the others. Indeed, it was Dasch who approached the FBI, offering to turn the men in, which he then did. Burger was part of the plot to turn on the others, and cooperated with the FBI extensively. Though all the men confessed, and gave full statements, the remaining six were executed on the electric chair on August 8, 1942 in Washington, D.C. The Court had issued its decision on July 31, 1942, but did not release a full opinion until October 29, 1942. Justice Jackson wrote and circulated a dissent in the case, but it was not published, perhaps because it was deemed necessary for the Court to appear unanimous since some of the appellants had already been executed.
[edit] Quirin and the Guantanamo Bay Military Commissions
In the days after the Military Order on November 13, 2001 to try suspected terrorists, and particularly those detained at Guantanamo Bay, in Military Commissions, Ex Parte Quirin was frequently cited as the legal basis for the Order. Upon the capture of the Quirin saboteurs, President Roosevelt issued an Executive Order, upon which the Bush Order was putatively modeled, which authorized military commissions to try the captives for, among other things, violations of the law of war, for providing the enemy with intelligence and spying.
The Quirin decision held that extant legislation authorized the use of Military Commissions for the types of offences in question. While in Quirin there was a declaration of war and three Articles (15,81 and 82) of the Articles of War. President Bush relies on a congressional Joint Resolution, which replaced a formal declaration of war under the War Powers Resolution, and two provisions of the Uniform Code of Military Justice, the successor to the Article of War.
The validity of this case as a basis for denying prisoners in the War on Terrorism protection by the Geneva Conventions has been disputed.[1][2][3] A report by the American Bar Association commenting on this case, states:
- The Quirin case, however, does not stand for the proposition that detainees may be held incommunicado and denied access to counsel; the defendants in Quirin were able to seek review and they were represented by counsel. In Quirin, “The question for decision is whether the detention of petitioners for trial by Military Commission ... is in conformity with the laws and Constitution of the United States. “ Quirin, 317 U.S. at 18. Since the Supreme Court has decided that even enemy aliens not lawfully within the United States are entitled to review under the circumstances of Quirin,11 that right could hardly be denied to U. S. citizens and other persons lawfully present in the United States, especially when held without any charges at all.[4]
Since the 1942 Quirin case, the US signed and ratified the 1949 Geneva Conventions, which are, therefore, considered to be a part of U.S. municipal law, in accordance with Article 6, paragraph 2, of the Constitution of the United States.[5] The cases which are currently making their way through the U.S. judicial system should clarify the U.S. administration's domestic legal position and its international treaty obligations.[6]
[edit] See also
[edit] References
- ^ War and the Constitution by George P. Fletcher in The American Prospect Issue Date: 1.1.02 or War and the Constitution and the response The Military Tribunal Debate
- ^ Revised ACLU Interested Person's Memo Urging Congress to Reject Power to Detain Suspected Terrorists Indefinitely Without Charge, Trial or a Right to Counsel by ACLU
- ^ TERRORISM AND THE RULE OF LAW by Nicholas Cowdery AM QC, President, International Association of Prosecutors Director of Public Prosecutions, NSW, Australia, at International Association of Prosecutors 8th Annual Conference, Washington, D.C. - 10-14 August 2003.
- ^ report by the American Bar Association in PDF
- ^ Wikisource:Ryuichi Shimoda et al. v. The State#II. Evaluation of the act of bombing according to municipal law Paragraph 2
- ^ Supreme Court To Decide On 'Enemy Combatants' by Christopher Dunn in the April 14, 2004 edition of the New York Law Journal.
- Ex parte Quirin, U.S. Supreme Court Decision (1942)
- Story of Herbert Haupt
- The Facts Don't Matter An hour-long This American Life radio episode about the events leading up to Ex parte Quirin
- Homefront Confrontational: How the War on Terror Affects Access to Information and the Publics Right to Know a report issued by the Reporters Committee for the Freedom of the Press
- Fisher, Louis. "Nazi Saboteurs on Trial: A Military Tribunal and American Law". 2nd Ed. University Press, Kansas, (2005)
- [2] Nazi Saboteur Tribunal Transcript
