Ex Parte Quirin
When the United States entered World War II residents of the west coast were worried about a Japanese invasion and east coast residents were worried about the Germans. Submarine attacks on shipping had occurred even before the United States entry into the war and the irregular Atlantic coast line with many secluded harbors and off-shore barrier islands offered opportunities for surreptitious landings.
In June 1942 two four-man groups of German saboteurs landed on the east coast, one on Long Island and one near Jacksonville, Florida. Two of the eight, Herbert Haupt and Peter Burger, were naturalized United States' citizens, a condition that might require them to be tried in a civil court (Fisher 2005 95). The purpose of the eight was to damage war production by attacking weak spots in transportation systems. Some of the explosives they brought with them included TNT designed to look like pieces of coal. This imitation coal would then be mixed in with the regular coal and at some random point would be shoveled into the engine's fire box, causing a huge explosion (Fisher 2005 91). Had this plan been successful it would have been equally effective against troop trains, freight trains and civilian passenger trains. The explosions would have been unpredictable and, consequently, more frightening. Even if there were relatively few explosions, the ensuing panic would have given rise to security measures that would delay the trains. A lot of manpower would have been involved in the Herculean task of trying to pick out the one piece of TNT in a ton of coal.
All eight were wearing German uniforms when they landed, a ploy that they hoped would allow them to be treated as prisoners-of-war if they were captured. The Florida group landed without being detected. The New York group met a Coastguardsman who directed them to follow him, an order to which they paid no attention. After landing, each person changed into civilian clothes, an action that definitely changed his status from soldier to saboteur/spy. Although each group got off the beach quickly, they were apprehended relatively soon. One saboteur, George John Dasch, turned himself in and Haupt called attention to himself by reporting to the FBI that he had returned from a trip to Mexico (Fisher 2005 93).
For his cooperation, Dasch was promised a civil trial, but considerations arose that made this impossible. First, it was important that the FBI continue to be seen as an effective and omniscient agency. A public civil trial would reveal that the capture was accomplished not by FBI sleuthing, but because one of the eight turned himself into the authorities. Second, it would be undesirable and even dangerous if it were known how easily two groups could approach and land on the coast without being detected. There were also several legal objections. Attorney General Francis Biddle thought that it would be difficult to get a conviction on sabotage because the crime had not been committed and the plans were in the early stage. He compared this to a person who has bought a gun with the intent to commit murder, but has not followed through with his plans. Such a person can not be charged with murder. Third, the government wanted a harsh penalty. If a conviction were to be obtained in civil court, the penalty was only thirty years. The eight could be charged with conspiracy, but a conviction on this charge would add only three years, at most, to the sentence (Fisher 2005 95). Espionage and treason did carry the death penalty, but Biddle thought it would be difficult to prove these charges in civil court (Fisher 2005 98).
The administration wanted to impose the death penalty on the saboteurs and, although the eight could have been tried by either a court martial or a military tribunal, a trial by the latter was seen as the best way to achieve this aim. President Franklin D. Roosevelt issued two proclamations on July 4, 1942. Proclamation 74 set up the military tribunal that would try the case. It named the officers who would preside and judge, and gave the tribunal the power to make whatever rules that it thought necessary, as long as the rules were in accordance with the Articles of War. The tribunal could accept testimony that would not be admissible under the more stringent rules of a court martial. The military order appointed both the prosecution and the defense counsel (Fisher 2005 100).
Proclamation 75 defined who could be subject to military tribunals and the type of crime that could be tried. It could be seen as an ex post facto law. The status of the two naturalized American citizens was avoided by making any people who were "subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation and who enter … through coastal or boundary defenses" (FDR, Proc. 75) subject to the Law of War and to being tried by a military tribunal if they come in for the purpose of committing or attempting to commit espionage, or hostile acts. This definition made it unnecessary to worry about whether someone was a citizen. If he had been working for an enemy government, he would be covered by tribunals. Similarly, espionage was clearly included and the lesser charge of attempted espionage was elevated to be eligible for harsher punishments. FDR said that the eight were not eligible for trials in civil courts.
Before the trial started, Kenneth Royall, defense attorney, challenged the authority of the court, citing Ex parte Milligan, because the civil courts were functioning. He also questioned the ability of the members of the court to try the case because they had been appointed by the President (Fisher 2005 102). The men were charged with sabotage and espionage, attempted sabotage and espionage, and conspiracy to commit sabotage and espionage. The trial began on July 7. On July 21, Royall began appealing to civil courts. The District court denied his request for habeas corpus on the grounds that the defendants were in a category of people who were excluded from civilian courts (Fisher 2005 106). The Supreme Court agreed to hear the case even though no action had been taken by the Court of Appeals. Royall had four basic arguments. First, the civil courts were open and should have jurisdiction. Second, there was no proof the alleged acts had been committed. Third, no crime had been committed against the United States government. Fourth, Roosevelt's Proclamation had set up ex post facto laws and more severe penalties (Fisher 2005 109). After nine hours of argument, the Court upheld the authority of the tribunal and the military jurors then resumed their deliberations. All eight of the defendants were convicted and sentenced to death. Roosevelt reviewed the sentences and commuted the sentences of Dasch and Berger to imprisonment. The trial concluded on August 1 and the executions were carried out on August 8.
The Supreme Court did not release its full opinion until October 29.The Court was in a difficult position. It was wartime, six of the accused had been executed, and there were questions about the legality of parts of the process. The court differentiated between "lawful" and "unlawful" combatants, maintaining that the latter are not entitled to civil trials, and can be tried by tribunals. This fuzzy category of unlawful combatants has been adopted for use in today's "War on Terrorism." The Court upheld the decision, although Justice Felix Frankfurter, in his concurring opinion, wrote that the President did not follow Articles of War 46-53 (Fisher 2005 116). The case has left a legacy that is dangerous both for civil liberties and for the balance of powers. In making rules for the military tribunal, Roosevelt pushed his presidential powers to a new extreme. The President has the duty to preserve and protect the country, but how far should he go in performing this responsibility? The Court did not directly answer the question of whether the President had overstepped the limits of his constitutional authority.
The decision in Ex parte Quirin has been used by the George W. Bush administration to justify the imprisonment of "enemy combatants" in Guantanamo naval base and in other jails on the United States mainland. The problems raised by Royall regarding a court that had its judge, jury, and counsel appointed by the President are pertinent to trials by tribunal of the detainees. The right of the detained to be subject to writs of habeas corpus is also similar. The German saboteurs had the advantage of knowing the charges filed against them and, although their trial was held in secret, the fact that it was being held was known and the verdict was publicized soon after it was reached. There were three violations of the Law of War in the 1942 case. Under the Laws of War, the death penalty can not be given without a unanimous opinion; Roosevelt's Proclamation allowed a death penalty to be imposed with a two-thirds majority. In a trial by court martial or military tribunal, the case should be reviewed through the military justice system by the Judge Advocate General. Finally, Military Law can not make a new crime. This has to be done by congressional statute. (Fisher 2005 112). Since the time of Quirin, additional Geneva Accords signed in 1949 have been adopted that have explicitly given rights to Prisoners of War and have guaranteed each detainee a hearing to determine whether a particular individual is a lawful or an unlawful enemy combatant (Geneva Conventions 1949 Third Protocol).
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