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U.S. Supreme
Court EX PARTE
QUIRIN 317 U.S. 1
(1942) Ex parte QUIRIN, Ex parte HAUPT,
Ex
parte KERLING, Ex parte BURGER, Ex parte HEINCK, Ex parte THIEL, Ex parte
NEUBAUER. Nos. --
Original and Nos. 1, 2, 3, 4, 5, 6 and 7-July Special Term, 1942 PER CURIAM. In these causes motions for leave to file petitions for habeas
corpus were presented to the United States District Court for the District of
Columbia, which entered orders denying the motions. Motions for leave to file
petitions for habeas corpus were then presented to this Court, and the merits
of the applications were fully argued at the Special Term of Court convened on
July 29, 1942.... The Court holds: (1) That the charges preferred
against petitioners on
which they are being tried by military commission appointed by the order of the
President of July 2, 1942, allege an offense or offenses which the President is
authorized to order tried before a military commission. (2) That the military
commission was lawfully constituted. (3) That petitioners are held in lawful
custody, for trial before the military commission, and have not shown cause for
being discharged by writ of habeas corpus. The motions for leave to file
petitions for writs of habeas corpus are denied.... T Mr. Justice MURPHY took no part in the consideration or decision
of these cases. Mr. Chief Justice STONE delivered the opinion of the Court. These cases are brought here by petitioners' several
applications for leave to file petitions for habeas corpus in this Court...The
question for decision is 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
Constitution of the United States. In view of the public importance of the questions raised by
their petitions and of the duty which rests on the courts, in time of war as
well as in time of peace, to preserve unimpaired the constitutional safeguards
of civil liberty, and because in our opinion the public interest required that
we consider and decide those questions without any avoidable delay, we directed
that petitioners' applications be set down for full oral argument at a special
term of this Court, convened on July 29, 1942. The applications for leave to
file the petitions were presented in open court on that day and were heard on
the petitions, the answers to them of respondent, a stipulation of facts by
counsel, and the record of the testimony given before the Commission.... The following facts appear from the petitions or are stipulated.
Except as noted they are undisputed. All the petitioners were born in Germany; all have lived in the
United States. All returned to Germany between 1933 and 1941. All except
petitioner Haupt are admittedly citizens of the German Reich, with which the
United States is at war. Haupt came to this country with his parents when he
was five years old; it is contended that he became a citizen of the United
States by virtue of the naturalization of his parents during his minority and
that he has not since lost his citizenship. The Government, however, takes the
position that on attaining his majority he elected to maintain German
allegiance and citizenship or in any case that he has by his conduct renounced
or abandoned his United States citizenship. For reasons presently to be stated
we do not find it necessary to resolve these contentions. After the declaration
of war between the United States and the German Reich, petitioners received
training at a sabotage school near Berlin, Germany, where they were instructed
in the use of explosives and in methods of secret writing. Thereafter
petitioners, with a German citizen, Dasch, proceeded from Germany to a seaport
in Occupied France, where petitioners Burger, Heinck and Quirin, together with
Dasch, boarded a German submarine which proceeded across the Atlantic to
Amagansett Beach on Long Island, New York. The four were there landed from the
submarine in the hours of darkness, on or about June 13, 1942, carrying with
them a supply of explosives, fuses and incendiary and timing devices. While
landing they wore German Marine Infantry uniforms or parts of uniforms.
Immediately after landing they buried their uniforms and the other articles
mentioned and proceeded in civilian dress to New York City. The remaining four petitioners at the same French port boarded
another German submarine, which carried them across the Atlantic to Ponte Vedra
Beach, Florida. On or about June 17, 1942, they came ashore during the hours of
darkness wearing caps of the German Marine Infantry and carrying with them a
supply of explosives, fuses, and incendiary and timing devices. They immediately
buried their caps and the other articles mentioned and proceeded in civilian
dress to Jacksonville, Florida, and thence to various points in the United
States. All were taken into custody in New York or Chicago by agents of the
Federal Bureau of Investigation. 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. They also had been
paid by the German Government during their course of training at the sabotage
school and had received substantial sums in United States currency, which were
in their possession when arrested. The currency had been handed to them by an
officer of the German High Command, who had instructed them to wear their
German uniforms while landing in the United States. The President, as President and Commander in Chief of the Army
and Navy, by Order of July 2, 1942, appointed a Military Commission and
directed it to try petitioners for offenses against the law of war and the
Articles of War, and prescribed regulations for the procedure on the trial and
for review of the record of the trial and of any judgment or sentence of the
Commission. On the same day, by Proclamation, the President declared that 'all
persons who are 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 during time of war enter or attempt to enter the United States
... through coastal or boundary defenses, and are charged with committing or
attempting or preparing to commit sabotage, espionage, hostile or warlike acts,
or violations of the law of war, shall be subject to the law of war and to the
jurisdiction of military tribunals'. The Proclamation also stated in terms that all such persons were
denied access to the courts. Pursuant to direction of the Attorney General, the Federal
Bureau of Investigation surrendered custody of petitioners to respondent,
Provost Marshal of the Military District of Washington, who was directed by the
Secretary of War to receive and keep them in custody, and who thereafter held
petitioners for trial before the Commission. On July 3, 1942, the Judge Advocate General's Department of the
Army prepared and lodged with the Commission the following charges against
petitioners, supported by specifications: 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. 4. Conspiracy to commit
the offenses alleged in charges 1, 2 and 3. The Commission met on July 8, 1942, and proceeded with the
trial, which continued in progress while the causes were pending in this Court.
On July 27th, before petitioners' applications to the District Court, all the
evidence for the prosecution and the defense had been taken by the Commission
and the case had been closed except for arguments of counsel. It is conceded
that ever since petitioners' arrest the state and federal courts in Florida,
New York, and the District of Columbia, and in the states in which each of the
petitioners was arrested or detained, have been open and functioning
normally.... Petitioners' main contention is that the President is without
any statutory or constitutional authority to order the petitioners to be tried
by military tribunal for offenses with which they are charged; that in
consequence they are entitled to be tried in the civil courts with the
safeguards, including trial by jury, which the Fifth and Sixth Amendments
guarantee to all persons charged in such courts with criminal offenses. In any
case it is urged that the President's Order, in prescribing the procedure of
the Commission and the method for review of its findings and sentence, and the
proceedings of the Commission under the Order, conflict with Articles of War
adopted by Congress-particularly Articles 38, 43, 46, 50 1/2 and 70-and are
illegal and void. The Government challenges each of these propositions. But
regardless of their merits, it also insists that petitioners must be denied
access to the courts, both because they are enemy aliens or have entered our
territory as enemy belligerents, and because the President's Proclamation
undertakes in terms to deny such access to the class of persons defined by the
Proclamation, which aptly describes the character and conduct of petitioners.
It is urged that if they are enemy aliens or if the Proclamation has force no
court may afford the petitioners a hearing. But there is certainly nothing in
the Proclamation to preclude access to the courts for determining its
applicability to the particular case. And neither the Proclamation nor the fact
that they are enemy aliens forecloses consideration by the courts of
petitioners' contentions that the Constitution and laws of the United States
constitutionally enacted forbid their trial by military commission. As
announced in our per curiam opinion we have resolved those questions by our
conclusion that the Commission has jurisdiction to try the charge preferred
against petitioners. There is therefore no occasion to decide contentions of
the parties unrelated to this issue. We pass at once to the consideration of
the basis of the Commission's authority. We are not here concerned with any question of the guilt or
innocence of petitioners. Constitutional safeguards for the protection of all
who are charged with offenses are not to be disregarded in order to inflict
merited punishment on some who are guilty. But the detention and trial of
petitioners-ordered by the President in the declared exercise of his powers as
Commander in Chief of the Army in time of war and of grave public danger-are
not to be set aside by the courts without the clear conviction that they are in
conflict with the Constitution or laws of Congress constitutionally enacted. Congress and the President, like the courts, possess no power
not derived from the Constitution. But one of the objects of the Constitution,
as declared by its preamble, is to 'provide for the common defence'. As a means
to that end the Constitution gives to Congress the power to 'provide for the
common Defence', Art. I, 8, cl. 1; 'To raise and support Armies', 'To provide
and maintain a Navy', Art. I, 8, cls. 12, 13; and 'To make Rules for the
Government and Regulation of the land and naval Forces', Art. I, 8, cl. 14.
Congress is given authority 'To declare War, grant Letters of Marque and
Reprisal, and make Rules concerning Captures on Land and Water', Art. I, 8, cl.
11; and 'To define and punish Piracies and Felonies committed on the high Seas,
and Offenses against the Law of Nations', Art. I, 8, cl. 10. And finally the
Constitution authorizes Congress 'To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States, or in any
Department or Officer thereof.' Art. I, 8, cl. 18. The Constitution confers on the President the 'executive Power',
Art II, 1, cl. 1, and imposes on him the duty to 'take Care that the Laws be
faithfully executed'. Art. II, 3. It makes him the Commander in Chief of the
Army and Navy, Art. II, 2, cl. 1, and empowers him to appoint and commission
officers of the United States. Art. II, 3, cl. 1. The Constitution thus invests the President as Commander in
Chief with the power to wage war which Congress has declared, and to carry into
effect all laws passed by Congress for the conduct of war and for the
government and regulation of the Armed Forces, and all laws defining and
punishing offences against the law of nations, including those which pertain to
the conduct of war. By the Articles of War, Congress has provided rules for the
government of the Army. It has provided for the trial and punishment, by courts
martial, of violations of the Articles by members of the armed forces and by
specified classes of persons associated or serving with the Army. But the
Articles also recognize the 'military commission' appointed by military command
as an appropriate tribunal for the trial and punishment of offenses against the
law of war not ordinarily tried by court martial. Articles 38 and 46
authorize the President, with certain limitations, to prescribe the procedure
for military commissions. Articles 81 and 82 authorize trial, either by court
martial or military commission, of those charged with relieving, harboring or
corresponding with the enemy and those charged with spying. And Article 15
declares that 'the provisions of these articles conferring jurisdiction upon
courts-martial shall not be construed as depriving military commissions ... or
other military tribunals of concurrent jurisdiction in respect of offenders or
offenses that by statute or by the law of war may be triable by such military
commissions ... or other military tribunals'. Article 2 includes among those
persons subject to military law the personnel of our own military
establishment. But this, as Article 12 provides, does not exclude from that
class 'any other person who by the law of war is subject to trial by military
tribunals' and who under Article 12 may be tried by court martial or under
Article 15 by military commission.... From the very beginning of its history this Court has recognized
and applied the law of war as including that part of the law of nations which
prescribes, for the conduct of war, the status, rights and duties of enemy
nations as well as of enemy individuals. By the Articles of War, and especially
Article 15, Congress has explicitly provided, so far as it may constitutionally
do so, that military tribunals shall have jurisdiction to try offenders or
offenses against the law of war in appropriate cases. Congress, in addition to
making rules for the government of our Armed Forces, has thus exercised its
authority to define and punish offenses against the law of nations by
sanctioning, within constitutional limitations, the jurisdiction of military
commissions to try persons for offenses which, according to the rules and
precepts of the law of nations, and more particularly the law of war, are
cognizable by such tribunals. And the President, as Commander in Chief, by his
Proclamation in time of war his invoked that law. By his Order creating the
present Commission he has undertaken to exercise the authority conferred upon
him by Congress, and also such authority as the Constitution itself gives the
Commander in Chief, to direct the performance of those functions which may
constitutionally be performed by the military arm of the nation in time of war. An important incident to the conduct of war is the adoption of
measures by the military command not only to repel and defeat the enemy, but to
seize and subject to disciplinary measures those enemies who in their attempt
to thwart or impede our military effort have violated the law of war. It is
unnecessary for present purposes to determine to what extent the President as
Commander in Chief has constitutional power to create military commissions
without the support of Congressional legislation. For here Congress has
authorized trial of offenses against the law of war before such commissions. We
are concerned only with the question whether it is within the constitutional
power of the national government to place petitioners upon trial before a
military commission for the offenses with which they are charged. We must
therefore first inquire whether any of the acts charged is an offense against
the law of war cognizable before a military tribunal, and if so whether the
Constitution prohibits the trial. We may assume that there are acts regarded in
other countries, or by some writers on international law, as offenses against
the law of war which would not be triable by military tribunal here, either
because they are not recognized by our courts as violations of the law of war
or because they are of that class of offenses constitutionally triable only by
a jury. It was upon such grounds that the Court denied the right to proceed by
military tribunal in Ex parte Milligan, supra. But as we shall show, these
petitioners were charged with an offense against the law of war which the
Constitution does not require to be tried by jury. It is no objection that Congress in providing for the trial of
such offenses has not itself undertaken to codify that branch of international
law or to mark its precise boundaries, or to enumerate or define by statute all
the acts which that law condemns....Congress had the choice of crystallizing in
permanent form and in minute detail every offense against the law of war, or of
adopting the system of common law applied by military tribunals so far as it
should be recognized and deemed applicable by the courts. It chose the latter
course. By universal agreement and practice 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. Such was the practice of our own military authorities before the
adoption of the Constitution, and during the Mexican and Civil Wars.... By a long course of practical administrative construction by its
military authorities, our Government has recognized that those who during time
of war pass surreptitiously from enemy territory into our own, discarding their
uniforms upon entry, for the commission of hostile acts involving destruction
of life or property, have the status of unlawful combatants punishable as such
by military commission. This precept of the law of war has been so recognized
in practice both here and abroad, and has so generally been accepted as valid
by authorities on international law that we think it must be regarded as a rule
or principle of the law of war recognized by this Government by its enactment
of the Fifteenth Article of War. Specification 1 of the First charge is sufficient to charge all
the petitioners with the offense of unlawful belligerency, trial of which is
within the jurisdiction of the Commission, and the admitted facts affirmatively
show that the charge is not merely colorable or without foundation. Specification 1 states that petitioners 'being enemies of the
United States and acting for ... the German Reich, a belligerent enemy nation,
secretly and covertly passed, in civilian dress, contrary to the law of war,
through the military and naval lines and defenses of the United States ... and
went behind such lines, contrary to the law of war, in civilian dress ... for
the purpose of committing ... hostile acts, and, in particular, to destroy
certain war industries, war utilities and war materials within the United States'. This specification so plainly alleges violation of the law of
war as to require but brief discussion of petitioners' contentions. As we have
seen, entry upon our territory in time of war by enemy belligerents, including
those acting under the direction of the armed forces of the enemy, for the
purpose of destroying property used or useful in prosecuting the war, is a
hostile and war-like act. It subjects those who participate in it without
uniform to the punishment prescribed by the law of war for unlawful
belligerents. It is without significance that petitioners were not alleged to
have borne conventional weapons or that their proposed hostile acts did not
necessarily contemplate collision with the Armed Forces of the United
States.... The law of war cannot rightly treat those agents of enemy armies who
enter our territory, armed with explosives intended for the destruction of war
industries and supplies, as any the less belligerent enemies than are agent
similarly entering for the purpose of destroying fortified places or our Armed
Forces. By passing our boundaries for such purposes without uniform or other
emblem signifying their belligerent status, or by discarding that means of
identification after entry, such enemies become unlawful belligerents subject
to trial and punishment. Citizenship in the United States of an enemy belligerent does
not relieve him from the consequences of a belligerency which is unlawful
because in violation of the law of war. Citizens who associate themselves with
the military arm of the enemy government, and with its aid, guidance and
direction enter this country bent on hostile acts are enemy belligerents within
the meaning of the Hague Convention and the law of war. It is as an enemy
belligerent that petitioner Haupt is charged with entering the United States,
and unlawful belligerency is the gravamen of the offense of which he is
accused. Nor are petitioners any the less belligerents if, as they argue,
they have not actually committed or attempted to commit any act of depredation
or entered the theatre or zone of active military operations. The argument
leaves out of account the nature of the offense which the Government charges
and which the Act of Congress, by incorporating the law of war, punishes. It is
that each petitioner, in circumstances which gave him the status of an enemy
belligerent, passed our military and naval lines and defenses or went behind
those lines, in civilian dress and with hostile purpose. The offense was
complete when with that purpose they entered-or, having so entered, they
remained upon-our territory in time of war without uniform or other appropriate
means of identification. For that reason, even when committed by a citizen, the
offense is distinct from the crime of treason defined in Article III, 3 of the
Constitution, since the absence of uniform essential to one is irrelevant to
the other. But petitioners insist that even if the offenses with which they
are charged are offenses against the law of war, their trial is subject to the
requirement of the Fifth Amendment that no person shall be held to answer for a
capital or otherwise infamous crime unless on a presentment or indictment of a
grand jury, and that such trials must be by jury in a civil court...In the
light of this long-continued and consistent interpretation we must conclude
that Section 2 of Article III and the Fifth and Sixth Amendments cannot be
taken to have extended the right to demand a jury to trials by military
commission, or to have required that offenses against the law of war not
triable by jury at common law be tried only in the civil courts....We conclude
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, and that petitioners, charged with such an offense not
required to be tried by jury at common law, were lawfully placed on trial by
the Commission without a jury. Petitioners, and especially petitioner Haupt, stress the
pronouncement of this Court in the Milligan case that the law of war 'can never
be applied to citizens in states which have upheld the authority of the
government, and where the courts are open and their process unobstructed'.
Elsewhere in its opinion, the Court was at pains to point out that Milligan, a
citizen twenty years resident in Indiana, who had never been a resident of any
of the states in rebellion, was not an enemy belligerent either entitled to the
status of a prisoner of war or subject to the penalties imposed upon unlawful
belligerents. We construe the Court's statement as to the inapplicability of
the law of war to Milligan's case as having particular reference to the facts
before it. From them the Court concluded that Milligan, not being a part of or
associated with the armed forces of the enemy, was a non-belligerent, not
subject to the law of war save as-in circumstances found not there to be
present and not involved here-martial law might be constitutionally
established. The Court's opinion is inapplicable to the case presented by the
present record. We have no occasion now to define with meticulous care the
ultimate boundaries of the jurisdiction of military tribunals to try persons
according to the law of war. It is enough that petitioners here, upon the
conceded facts, were plainly within those boundaries, and were held in good
faith for trial by military commission, charged with being enemies who, with
the purpose of destroying war materials and utilities, entered or after entry
remained in our territory without uniform-an offense against the law of war. We
hold only that those particular acts constitute an offense against the law of
war which the Constitution authorizes to be tried by military commission.... Exploring Constitutional
Conflicts
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