Today in Supreme Court History

Today in Supreme Court History: July 29, 1942

|The Volokh Conspiracy |

7/29/1942: Supreme Court hears oral argument in Ex Parte Quirin.

The Stone Court (1942)

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  1. Always puzzled me that it was so easy to say “war circumvents the constitution”. So much of the constitution is rendered irrelevant when it comes to “national security”.

    Made me wonder what would happen if a country had no armed forces. The US, for instance, has zero chance of being invaded; Belgium’s and Poland’s militaries did them no appreciable good in either world war. Xenophobes will claim dirty Mexicans are invaders. Other alarmists will postulate an invasion by the Chinese. Hooey on them. Anyway, supposing the US or any other country simply had no military, and did not recognize any other country’s military or any rules of war. Any invaders would be treated as common criminals.

    I bet there’s a good speculative fiction novel in that (hard to call it science fiction).

    1. While the industrial-military complex has seriously skewed the roles of our military, our forces still have the primary function of preemptively ensuring we don’t have “[a]ny invaders.”

    2. Well, how would that have played out on 9/11? Sure, in theory, the 9/11 hijackers were common criminals, but bringing al Quaeda to justice (to the limited extent it has been brought to justice) required a military.

      1. You want a counter-factual, how about starting with Al Qaeda never having been formed if there had been no US military to be stationed in Saudi Arabia, or for Bush Sr to have ever saved the royal Saudi ass?

        You could at least put some effort into your alternatives.

        And stop taking speculation so seriously. Sheesh!

        1. Maybe Al Quaeda would have formed, and may it wouldn’t have; I lived in the Middle East for three years and I’m far from convinced that radical Islam wouldn’t have been exported to the US at some point regardless. Sure, our presence there may have sped up the process, but Saudi Arabia has been funding and exporting radical Islam for years, and I think it eventually would have found its way over here.

          But even if you’re right, on occasion there will be acts against the United States that will require a military response.

        2. You have to go back much further, in my opinion, to get to no Al Qaeda. On what you postulate, that particular name might not exist, but some other similar organization would.

          If the US had no Military and never got involved in WWI and or WWII what would the Middle East look like today. Israel probably wouldn’t exist, but that area would likely still be under the control of some European power or another. But it’s not just Israel The entire map of the political divisions of the Middle East would look very different than it does today.

        3. There would be no radical Islam today if we hadn’t let OUR oil wells be nationalized in the 1950’s/1960’s, and Jimmy Carter’s misadventures in Iran definitely didn’t help.

          We could nuke Mecca — it’d be bloody but we could eliminate this problem once and for all. We choose not to — that may be the right choice but do not forget that it is A choice…

          1. Beyond your being a psycho quite willing to sacrifice countless innocents, you don’t understand how martyrs work if you think nuking Mecca would do a dang thing.

            1. like moths to a flame. Use a neutron device with an air blast. Leaves their cultural symbol intact to draw in another full house. lather, rinse, repeat.

              All 1.5 billion have to to go before you can even think about killing that stupid idea.

              And Abimelech fought against the city all that day. He captured the city and killed the people who were in it, and he razed the city and sowed it with salt.

      2. I disagree.
        9/11 should have been treated as a police matter. Not the trigger for a multi-trillion dollar “global war on terror”.

    3. Panama and Costa Rica don’t have standing armies although they do have “public forces” which are basically national police with limited military capabilities (probably not much different from the capabilities of our own law enforcement at all levels). I don’t know if they’ve ever dealt with paramilitary groups from bordering countries that might cross into their territory. But that might be a place to look for how they deal with things.

      1. “how they deal with things”

        Their Uncle Sam would take care of anything serious.

        Now, who protects them from their Uncle is a different story.

    4. “Poland’s militaries did them no appreciable good in either world war”

      Poland was not an independent nation in WW I, it was divided among Austria and Russia.

      1. Yes, I forgot about that, but my point stands: those weak countries’ militaries did little good, and the money spent on them would have been better left to taxpayers.

        1. The Polish army defeated a Soviet invasion in 1920.

          1. The Soviets were barely organized after the Bolshevik revolution.

    5. If I’m not mistaken, it was the Poles who first cracked the Nazi codes, sharing what they learned with the British, who then expanded upon it.

      1. Didn’t require a military to do that.

        1. Required military funding.

          1. Funding is fungible.

      2. It was the Poles that got a hold of a copy of the Nazi coding machine, but the codes changed constantly, it was a critical piece but by no means more than a fraction of the total effort needed to break the Nazi codes.

    6. The Japanese did more than people remember, in addition to Pearl Harbor, they invaded Alaska and bombed (via balloons) the Pacific Northwest. See: https://www.history.com/news/attack-of-japans-killer-wwii-balloons-70-years-ago

      Now I’m not defending Franklin Roosevelt, who promised in 1940 that he “will not send your boys to fight in a foreign war”, but Hitler had the “AmericaBomber” and could have at least dropped dirty bombs. And we were way more dependent on coastal shipping than people realize — gasoline rationing was initially necessitated by German subs sinking tankers transporting refined products (i.e. gasoline) from the refineries to the Northeast.

      Remember too that Mussolini forced Hitler to start WWII some 2-5 years before he was planning to, and hence a lot of the things the Nazis were working on weren’t quite ready yet. We wound up sinking his subs faster than he could produce them — it’d been a very different story if he’d started with the number of subs he wound up building. And absent a Navy, large battleships such as the Bismark and Turpitz could have shelled all of our major cities, which at the time were all within 25-30 miles of navigable waters.

      1. Quirin is still a really dumb decision. I can imagine some hypothetical scenario where military trials might have been justified, but here, they were just doing it because they could and wanted to establish they had the power to deny due process. The sabateurs could have easily and swiftly been convicted and imprisoned.

        1. I think it’s still correct.

          If someone joins a foreign army at war with the United States then they assume all risk of any other soldier fighting the war in that army.

          Let’s extrapolate the decision to what would happen if rather a few sabators the Nazis landed an entire corps on the Atlantic seaboard and had it’s units guided by American citizens of German extraction. Do all of them get due process while we are in the middle of fighting a war on American soil? I think not.

          And really there is little difference legally between them and how we dealt with Confederate spy’s, who were obviously American citizens, they were tried by military commissions and executed when caught, John Beall being just one example.

          1. If the Nazis actually launched an invasion, that’s a different issue! Ex Parte Milligan seems to me to get it right- if the court system can adequately deal with the situation, you need to go through the court system.

            And you are making the same mistake that FDR and George W. Bush made- assuming that it is somehow “tougher” or a matter of what people “deserve” to afford due process. We afford due process to protect the innocent. The power FDR claimed is also the power to declare an innocent person a combatant and execute him or her. Seriously. That’s what Quirin means.

            And if you think that’s an unrealistic concern- we did just that, imprisoning innocent people after 9/11.

            As I said, is there a conceivable situation where courts would have to stand aside. Maybe. But if the courts are in a position to sort out guilty and innocent people, they should retain that power to do so.

      2. Your history is warped beyond belief.

        There was no functional Amerika bomber. Even if there had been, the distance was so far that it would have precluded any useful bomb load or any useful self-protection.

        Mussolini did not force Hitler to start the war early. Hitler did. Hitler was his own worst enemy. Where do you et these gems?

        It’s easy to make up all sorts of bizarre scenarios. You contradict your own” one scenarios predicts battleships shelling the US east coast (why? to what end?) and another predicts building U-boats instead of battleships.

    7. Costa Rica has had no military since 1947.

  2. I suggest anyone thinking about America at war look at the “Committees of Public Safety” that existed during the American Revolution. This was the origin of the term “Lynching” and do not that a full third of the populace wished to remain loyal to Britain and a second third just wanted to be left alone — only a third of Americans actually supported the Revolution.

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