Today in Supreme Court History: October 29, 1942

10/29/1942: Published decision in Ex Parte Quirin released. At that point, six of the saboteurs had already been electrocuted.

The Stone Court (1941-1942)

Comments

[Martinned]

Yes, World War II was not a great period for the courts either in the US or the UK...

[Cal Cetín]

At least it was better than WWI - not that it would be particularly difficult to exceed that standard.

[Michael P]

Which courts provided a superior example during that war?

[Martinned]

Why do you think that's the relevant point of comparison? (As opposed to those same courts before and/or after the war.)

[Bob from Ohio]

At least the Brits didn't surrender after 4 days.

[Martinned]

Convenient, having a sea or an ocean between you and any possible enemy...

[Bob from Ohio]

4 days dude. 4 days.

I realize Dutch troops were only experienced in terrorizing unarmed natives in the East Indies but a Texas Boy Scout troop could have put up a better defense.

[Armchair Lawyer]

Remind me why this decision was a poor one?

[Martinned]

Because they put up with the detainees being killed pending litigation. That strikes me as not a great example of effective protection of legal rights.

[ReaderY]

They weren’t. The Supreme Court decided the case with an opinion to issue later. The published opinion supporting the decision hadn’t come yet, but the Supreme Court had ruled and the litigation was over.

[Martinned]

Comment withdrawn. (Although, in my defence, that seems like something the OP could have written up more clearly.)

[Cal Cetín]

Was it illegal to hang Major Andre? (Millennials: "Major *who*?")

On the other hand, one of the saboteurs may have been a U. S. citizen, and the Constitution at least arguably contemplates a treason trial for such citizens.

Of course, the Supreme Court didn't give itself a lot of time to contemplate those questions. Issuing an opinion after the people are dead sounds like the 9th Circuit giving an opinion on behalf of a dead judge.

[Gandydancer]

Wikipedia says Ernst Burger and Herbert Haupt were American citizens, naming an Oxford University Press book as its source.
https://en.wikipedia.org/wiki/Operation_Pastorius

[Martinned]

I don't see why the citizenship of these individuals matters. The confederate soldiers who were shot or detained during the civil war were also US citizens, but that doesn't mean they were entitled to a trial for treason instead.

If I had to ventue a criticism of this judgment, I'd say that the continental United States wasn't plausibly part of any battlefield, and that enemy soldiers caught breaking the law away from the battlefield are entitled to a trial. If that's the right answer, it's the right answer for all detainees, not just for the US citizens. The 4th and 5th amendments aren't limited to citizens.

[ReaderY]

The 4th Anendment applies only to “the people.” That doesn’t even cover illegal immigrants, let alone enemy combatants.

The Supreme Court has long recognized an exception to civilian trial for American soldiers. Why should enemy soldiers get better?

[Martinned]

Because American soldiers volunteered to serve, and therefore voluntarily signed some of their rights away. At least that's how I understand the logic behind the permissibility of things like courts martial. (Not sure how that works in times of the draft, but then the draft itself is a bit of an ad hoc thing.)

And whether they were "enemy combatants" is exactly the point. They were enlisted in an enemy army, and coming to the US in order to break stuff contrary to the laws of the United States, but whether that makes them enemy combatants or just criminals who happen to be soldiers is exactly the question.

As for illegal immigrants, they certainly can be "seized" pending removal, but I don't think they can be tried by military commission. (And I wonder whether they can be detained in circumstances where there's no plausible intention to actually remove them. The case law of the ECtHR certainly places restrictions on that, but then that's true in lots of areas of the law where the US solution is a bit more harsh on "the poors".)

[ReaderY]

Also, having sworn allegiance to an enemy of the united states, it’s not clear they were American citizens. After the Union won the war, they became American citizens again. But this outcome was by no means clear while the war was going on.

Congress can constitutionally deprive people who join the military of another country of US citizenship. Whether the Confederacy was “another country” or not for all purposes while the war was going on, it was for purposes of Confederate soldiers being treated as enemy combatants and not civilians.

[Martinned]

Congress can constitutionally deprive people who join the military of another country of US citizenship.

Where does it say that?

Also, having sworn allegiance to an enemy of the united states, it’s not clear they were American citizens.

I don't know about the 19th century, but that's certainly not how US citizenship works today.

[GKHoffman]

Martial law had been declared during the Civil War. Not so, during WW II.

[Bob from Ohio]

"entitled to a trial"

They had a trial.

So stop complaining.

[John F. Carr]

...and thereby creating extra work for a later generation of results-oriented judges who thought the War on Terror did not deserve the same effort as WW2.

[Hugo S. Cunningham]

(1) Allowing a truly public trial, revealing the weaknesses of American security and exposing the saboteur who lost his nerve and betrayed the operation, would have been a catastrophic blunder. It would have enabled the Nazis to send other saboteurs, better trained and prepared.
(1b) Part of future spies' preparation could have been a film of the family members of the first turncoat, choking to death very slowly and painfully on piano wire. They would have been warned that if they failed in their duty, the foolish Americans would reveal it in another public trial.

(2) But SCotUS could have expressed displeasure at having our civilian courts roped into an embarrassing show trial. In wartime, spies are properly disposed of in secret court martials

[Cal Cetín]

If civilian trials were the norm, I think Washington would have provided one to Major Andre.

But Andre was an enemy alien - a member of a hostile nation. His treatment would be governed by the laws of war, not the Constitution.

It's the treatment of citizen-traitors where I'm not certain. By which I mean I really haven't investigated all the ins and outs. But summary military commissions for alleged traitors would certainly be a highly convenient loophole to the scrupulously-drawn Treason Clause, which certainly contemplates wartime disloyalty.

[Cal Cetín]

(Yes, I know Andre's hanging predated the Constitution. But without it and similar hangings maybe we wouldn't have had a country and a constitution at all, who knows)