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.
His argument ran as follows. The military has courts martial, occasionally called military commissions. They can only try military personnel for crimes “provided for … the articles of war” adopted by Congress, and only Congress. The defendants, if not under that law, must be dismissed (for civil trial). Commissions could never try non-military persons. Under the Fifth Amendment, no one could be tried “for a capital or otherwise infamous crime, unless on a presentment of a grand jury, except in cases arising in the land or naval forces” (italics added). (The same exception must apply in the Sixth Amendment, which was otherwise “a dead letter.”)
Abstract “war powers” (Johnson went on) cannot furnish Congress with extraconstitutional powers, or rewrite Congress’s articles of war. No legislation had ever mentioned military commissions prior to acts of 1862 and 1863, which arose from the ongoing war. Unknown war powers ascribed to the commander in chief did not legitimize this military commission, nor could the president’s role, if any, in suspending habeas corpus during invasion or rebellion. Suspension cannot erase a prisoner’s other substantial rights, but only shields an official who ignores the writ from later lawsuit. Civilian prisoners must be tried in proper courts, or be released. Suspension can only work a delay.
The commission charged the prisoners with “traitorous conspiracy” to assassinate Lincoln and others “in aid of” the Confederate States. Some people, Johnson added, were saying that “there exists with us the offense of military treason” (i.e., refusal of provisional allegiance to an occupying power, i.e., Kriegsverrat). He could not find that European notion in Anglo-American law. (Francis Lieber, Lincoln’s laws-of-war theorist, was German.) But treason must be tried in a civil court — of the District, or of Maryland. Johnson doubted that American law meant for every personal right “to depend for its enjoyment upon the war power.”
The civilian defendants in the Lincoln assassination trial were not under articles of war or subject to un-court-like tribunals. Neither would a real court allow the commission’s vague speculations about motives. Even Jefferson Davis, thought to be the Booth conspiracy’s mastermind, was about to be tried in a real court. If the law were what the commission claimed, why have a trial at all? If the commander in chief could put anyone under court martial, “he may punish upon his own unassisted judgment.” (It might be rude to bring up drones at this point.) Johnson reiterated that under the Fifth Amendment, no one could be tried “for a capital or otherwise infamous crime, unless on a presentment of a grand jury, except in cases arising in the land or naval forces” (“Argument on the Jurisdiction of the Military Commission,” at https://www.surrattmuseum.org/proceedings-of-the-conspiracy -trial).
The words “arising in” would have a very busy future.
Between 1861 and 1865, military and legal advisors of the Union government invented and deployed historical claims of the kind accepted in Quirin. They collected Revolutionary War “precedents” and constructively stretched constitutional and statutory language past breaking. Some of their speculations involved spies.
During the U.S. Revolution, the states dealt with civilians caught spying as traitors, and tried them in civil courts. Having no legislative power and few functionaries, Congress necessarily left the matter to the states. George Washington deferred to state civil courts and overstepped only once or twice (immediately after the Benedict Arnold conspiracy). This bare handful of anomalies makes a poor pedigree for military commissions and sheds little light on the Articles of War adopted by Congress after 1789 (closely based on those of 1775 and 1776).
Spies found in U.S. army camps were generally killed out of hand. That was customary and spying as such did not violate “laws” of war (nor did conspiracy) — whatever the Court that decided Quirin may have thought.
Broadly speaking, U.S. practice between 1789 and 1861 answered to Reverdy Johnson’s account of the law. Confederates largely continued those rules. The Union invented new ones. U.S. Judge Advocate General Joseph Holt went mad with military commissions; by 1863 he imagined they were older than God. Since anything anyone did might conceivably affect the military, Holt concluded that anyone could be tried by commission, if his act was done anywhere near a base, or battle. If so, it could be seen as “arising in the land or naval forces.”
Citing Dynes (1858), Holt took the “grand jury exception” in the Fifth Amendment to mean no jury whatsoever for defendants before military commissions. But note how deploying the unproven assumption that military commissions can try civilians in some cases cleverly upends things, yielding the deduction that no one so tried can have a real jury, since military personnel do not. (Milligan and Quirin let this stand.) Such juridical legerdemain peaked during the trial of Lincoln’s assassins. Thereafter, Holt’s assistant, Col. William Winthrop (the “Blackstone” of American military law), fine-tuned the new doctrines and variations on “arising in.”
(For most of the above points, see Martin S. Lederman, “If George Washington Did It …” Georgetown Law Journal [forthcoming].)
Interesting enough, the Union Navy commission dealing with blockade runners admitted in early 1864 “that no persons except such as are in the military or naval service of the United States are subject to trial by military courts, spies only excepted; and that except in districts under martial law [that murky notion], a military commission cannot try any person whatsoever not in the U.S. military or naval service for any offense whatever” (Mark Neely, The Fate of Liberty).
From 1861 to the present, politicians, lawyers, officers, and others have mined early American history in aid of smuggling military commissions (artfully confounded with courts martial) into the legal order. But absent any constitution or federal law between 1775 and 1781, perhaps they had no place. There is, moreover, a certain lack of institutional continuity between the Continental Congress, the Articles of Confederation, and the present Constitution (1789).
In any case, courts martial under the Articles of War are tools of the executive, established by Congress, to maintain discipline through near-certain conviction. Conflating them with military commissions, Lincoln, Roosevelt, and George W. Bush sought to extend military despotism to civilians. “Copperhead” Henry Clay Dean described such a commission as “a committee of military vagabonds” — adding, “If … a war power may exist, independent of written constitutions, then we have no government, but are simply ruled by arbitrary power” (Crimes of the Civil War).
As of 2016, arbitrary power (shielded in particular by the Argument from Lincoln’s Greatness) is doing rather well. By leaving military commissions unexamined and unharmed, both Milligan and Quirin opened a royal road to martial law and the like under a screen of “necessity,” with the latter determined by those acting in its name. One often hears these days that wartime cases “clarify” the Constitution by demonstrating its “flexibility” in crises. The opposite is surely true, although the flexibility of those claiming additional powers does come into view.
On such matters, the jury — if one is allowed — seems to be out.
As for the saboteurs, there were certainly alternatives to subjecting six of them to American electrical engineering and the other two to life sentences. (They were released early.) Two that come to mind are holding them as prisoners of war and allowing them trials in a real court (state or federal).