Ex parte Quirin, 317 U.S. 1 (1942), was a case of the United States Supreme Court that during World War II upheld the jurisdiction of a United States military tribunal over the trial of eight German saboteurs, in the United States.. Quirin has been cited as a precedent for the trial by military commission of unlawful combatants.
It was argued July 29 and 30, and decided July 31, with an extended opinion filed October 29, 1942.
Background
The eight men involved in the case were Ernest Peter Burger, George John Dasch, Herbert Hans Haupt, Heinrich Heinck, Edward Kerling, Herman Neubauer, Richard Quirin and Werner Thiel. Burger and Haupt were U.S. citizens. (317 U.S. 1)
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 Nazi Germany in December 1941 following the Japanese sneak attack on Pearl Harbor, 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 U-202 to Amagansett Beach, Long Island, New York, landing in the hours of darkness, on June 13, 1942. The remaining four boarded the German submarine U-584 which carried them from France to Ponte Vedra Beach, Florida. On June 16, 1942, they came ashore during the hours of darkness. All eight wore full or partial German military uniforms so that if they were captured upon landing, they would be entitled to prisoner-of-war status rather than being treated as spies. The Long Island group was noticed by Coast Guard beach patrolman John C. Cullen, whom the saboteurs attempted to bribe with $260. Cullen returned to his station and sounded the alarm. 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 other key targets in the United States, for which they or their relatives in Germany were to receive salary payments from the German government.
Upon landing, Dasch and Burger turned themselves in to the Federal Bureau of Investigation with some difficulty, since the FBI did not believe them immediately. They convinced the FBI that they were telling the truth and the remaining six were taken into custody in New York and Chicago, Illinois by FBI agents. The FBI had no leads until Dasch gave his exaggerated and romanticized version in Washington, D.C.
Military tribunal On July 2, 1942, President Franklin D. Roosevelt issued Executive Proclamation 2561 establishing a military tribunal to prosecute the Germans. Placed before a seven-member military commission, the Germans were charged with: violating the law of war; violating Article 81 of the Articles of War, defining the offense of corresponding with or giving intelligence to the enemy; violating Article 82 of the Articles of War, defining the offense of spying; conspiracy to commit the offenses alleged in the first three charges.
From July 8 to August 1, 1942, the trial took place in Assembly Hall #1 on the fifth floor of the Department of Justice building in Washington, D.C. On August 3, 1942, two days after the trial ended, all eight were found guilty and sentenced to death. Roosevelt later commuted the death sentence of Dasch to 30 years in prison and the sentence of Burger to life in prison, 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. The remaining six were executed in the electric chair on the third floor of the District of Columbia jail on August 8 and buried in a potter's field called Blue Plains in the Anacostia area of Washington.
In 1948, Dasch and Burger were released by President Harry S. Truman and deported to the American Zone of occupied Germany. Dasch spent the remaining years of his life trying to return to the United States. One time, a visa application was sent to J. Edgar Hoover by the State Department on Dasch's behalf. Hoover stated that the idea of giving Dasch a visa was "outrageous" and promptly denied it. Dasch died – still in Germany – in 1992.
Constitutionality of military tribunals Throughout the trial, Roosevelt's decision of creating a military tribunal to prosecute the Germans was challenged by Lieutenant Colonel Kenneth Royall, who was appointed to defend the Germans. Royall said that Roosevelt had no right to create a military tribunal to try his clients, citing Ex parte Milligan (1866), a case in which the U.S. Supreme Court ruled that the federal government could not establish military tribunals to try civilians in areas where civilian courts were functioning, even during wartime. Since civilian courts were functioning in Washington, D.C., he argued that the case involving the Germans should be heard there. Attorney General Francis Biddle, who was appointed as a prosecutor of the case, responded that the clients who, acting on behalf of the German government, secretly entered into U.S. territory without proper uniforms in time of war for the purpose of committing hostile acts, were not entitled to have access to civilian courts. Biddle stated that, "This is not a trial of offenses of law of the civil courts, but is a trial of the offenses of the law of war, which is not recognizable by the civil courts. It is the trial, as alleged in the charges, of certain enemies who crossed our borders ... and who crossed in disguise and landed here ... They are exactly and precisely in the same position as armed forces invading this country."
Royall asserted that there was no evidence to prove that the Germans would have followed through with their plans, claiming they had only vague contacts through which to communicate with Germany, and no plans to return home until after the war. Biddle rebutted this argument, citing the case of British Major John André, who was executed as a spy by the Continental Army for passing through American lines to meet with American officer Benedict Arnold during the American Revolutionary War.The Atlantic February 2002: The Keystone Kommandos Royall, along with his clients, then petitioned for a writ of habeas corpus demanding that the Germans were entitled to trial by jury guaranteed by the U.S. Fifth and Sixth Amendments. Though the U.S. Supreme Court had been adjourned for the summer, it convened to consider the matter in a special session on July 29, 1942. Justice Frank Murphy, an Army officer at the time, recused himself.
Royall argued that the German landings at New York and Florida could not be characterized as "zones of military operation" and contended that there was no combat there or plausible threat of invasion by approaching enemy forces. He argued that civilian courts were functioning, and under the circumstances, they were the appropriate venue for the case to be heard. Biddle responded that the U.S. and Germany were at war and cited the Alien Enemies Act of 1798 which stated:
On July 31, the Supreme Court unanimously denied Royall's appeal, writing, "The military commission was lawfully constituted ... 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."Military Tribunals
Supreme Court decision The Supreme Court had issued its decision on July 31, 1942, but did not release a full opinion until October 29, 1942. In this decision, the Court held:
The Court ruled that the German saboteurs had no right to be given access to civilian courts because they were "plainly within the ultimate boundaries of the jurisdiction of military tribunals, 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. Those particular acts constitute an offense against the law of war which the Constitution authorizes to be tried by military commission." It held that while lawful combatants may be captured and held as prisoners of war, unlawful combatants face harsher circumstances such as being sentenced to prison terms or put to death.
The Court also drew a distinction between the cases of Milligan and Quirin. In the Milligan case, Lambdin P. Milligan, although conspiring to commit sabotage in aid of the Confederate cause, was a civilian resident of Indiana, one of the many Union states engaged in a Civil War against the Confederacy, had not had a residence in a Confederate state, was not a part of or associated with the Confederate armed forces, and thus could not be tried by a military tribunal in areas where civilian courts were operating. On the other hand, in the Quirin case, the Germans were part of or associated with the German armed forces, entered into U.S. territory without proper uniforms in time of war for the purpose of gathering intelligence or waging war by destruction of life or property, and thus were liable to be tried by a military tribunal."Judicial Review for Enemy Fighters: The Court's Fateful Turn in Ex parte Quirin, the Nazi Saboteur Case".
This decision states in part that:
Haupt and Burger argued that as U.S. citizens, they should not have their writs of habeas corpus suspended, but the Court ruled that "[c]itizenship 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."317 U.S. 1, 37. It also stated that "citizens who associate themselves with the military arm of an 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."317 U.S. 1, 38. Furthermore, the Court ruled that the president's proclamation was a lawful order because it was in fact recognized by Congress in Articles 15, 38, and 46 of the Articles of War. In explaining the role of Congress, Chief Justice Harlan Stone held that:
Decision controversy