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Ex parte Quirin
Seal of the United States Supreme Court.svg
Supreme Court of the United States
Argued July 29–30, 1942
Decided July 31, 1942
Full case name Ex parte Richard Quirin; Ex parte Herbert Hans Haupt; Ex parte Edward John Kerling; Ex parte Ernest Peter Burger; Ex parte Heinrich Harm Heinck; Ex parte Werner Thiel; Ex parte Hermann Otto Neubauer; United States ex rel. Quirin v. Cox, Brig. Gen., U.S.A., Provost Marshal of the Military District of Washington, and 6 other cases.
Citations 317 U.S. 1 (more)
63 S. Ct. 2; 87 L. Ed. 3; 1942 U.S. LEXIS 1119
Prior history Motion for leave to file petition for writs of habeas corpus denied, 47 F. Supp. 431 (D.D.C. 1942)
The Court upheld the jurisdiction of a United States military tribunal over the trial of several German saboteurs in the United States.
Court membership
Case opinions
Per curiam.
Majority Stone
Murphy took no part in the consideration or decision of the case.
Laws applied
U.S. Const.

Ex parte Quirin, 317 U.S. 1 (1942), is a Supreme Court of the United States case that upheld the jurisdiction of a United States military tribunal over the trial of several Operation Pastorius German saboteurs in the United States. Quirin has been cited as a precedent for the trial by military commission of any unlawful combatant against the United States.

It was argued July 29 and July 30, 1942 and decided July 31, 1942 with an extended opinion filed October 29, 1942.

This decision states:

…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.





The eight men involved in the case were Ernst Peter Burger, George John Dasch, Herbert Hans Haupt, Heinrich Heinck, Edward Keiling, Herman Neubauer, Richard Quirin and Werner Thiel. Only Haupt was a U.S. citizen. (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 the German Reich, 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 German submarine U-202 to Amagansett Beach, Long Island, New York, landing in the hours of darkness, on or about June 13, 1942. The remaining four boarded German submarine U-584 which carried them from France to Ponte Vedra Beach, Florida. On or about June 17, 1942, they came ashore during the hours of darkness. All eight wore full or partial German uniforms, to ensure treatment as prisoners of war should they be captured on landing. 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 war facilities 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 DC.

Military Tribunal

President Franklin D. Roosevelt convened a secret military tribunal on July 2, 1942 which sentenced the eight men to death.[1] The President later commuted the death sentences of Dasch and 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. Though all of the men confessed and gave full statements, the remaining six were executed by electrocution on August 8, 1942 in Washington, D.C. Dasch and Burger were released from prison in 1948 and deported to Germany. Dasch spent the remaining years of his life trying to return to the U.S. 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.

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.

Decision Controversy

Although the court issued a unanimous opinion in Quirin, the road to the final decision was marked by disagreement. Justice Douglas noted that it was unfortunate that the court agreed to take the case. He stated that “while it was easy to agree on the original per curiam, we almost fell apart when it came to write the views."[2] Justice Stone, for his part, was very concerned with the court’s reputation, specifically because he did not want the court to be perceived as just standing by while six men were executed. He pushed for a unanimous opinion. Despite Justice Stone’s views, Justice Robert H. Jackson wrote a concurring draft opinion, expressing his disagreement with portions of the Court’s opinion. Over time, his concurring draft got longer and longer and evolved into a typewritten memorandum.[3] This memorandum was written two years before his dissent in Korematsu v. United States and a decade before his famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer. It provides insight into Jackson’s views on the scope of the President's constitutional war powers. The controversy has been revived, and has had recent legal implications.[4]

Justice Jackson's Draft Opinion

In his draft opinion, Jackson granted sweeping powers to the President. He concluded that (1) the President has the inherent authority to create military tribunals, (2) this authority could not be regulated by Congress, and (3) this power was by virtue of his power as Commander-in-Chief.[5]

Jackson stated, "I think the Court's decision of the question whether it complied with the Articles of War is uncalled for. The history and the language of the Articles are to me a plain demonstration that they are clearly inapplicable to this case and it is abundantly clear to me that it is well within the war powers of the President to create a non-statutory military tribunal of the sort here in question."[5] He further wrote "The right to convene such an advisory committee of his staff as a 'military commission' for the discharge of his duties toward prisoners of war is one that follows from his position as commander in chief."[5] Nonetheless, Jackson maintained that the President's power should be "discharged, of course, in the light of any obligation undertaken by our country under treaties or conventions or under customs and usages so generally accepted as to constitute the laws of warfare."[5]

More importantly, Jackson also questioned the Court's ability to review the President's actions. He concluded that dealing with enemy prisoners of war was a foreign policy issue that touched upon issues of national security and political questions that were wholly out of the province of the judiciary. Jackson reasoned that granting enemy combatants individual rights against military authorities would not be reciprocated in other countries.

Jackson analyzed both the history and purposes of the Articles of War to conclude that the Articles are not applicable to enemy combatants--rather they were meant to protect U.S. civilians in times of military government. Although it would seem that his draft opinion is at odds with his later views of the President's war powers, specifically in Youngstown Sheet & Tube Co. v. Sawyer in which he interpreted Congress's ability to restrict the President's powers rather generously, there are substantive differences between the two cases. Youngstown concerned an exercise of presidential power in a domestic matter against civilians in an undeclared war. It was very different from the scenario present in Quirin in which the President seized enemy combatants and did not address the internal functioning of the government.

In Quirin, Jackson ultimately believed it was a mistake for the Court to review military judgments in times of war and he solidified this position in his dissent in Korematsu v. United States. In that case, he stated "in the very nature of things military decisions are not susceptible of intelligent judicial appraisal."[6] His dissent in Korematsu makes clear his belief that that bringing military orders under the protection of the Constitution proved to be a dangerous precedent and the court should not execute nor review military orders. He was afraid that the "emergency that justified the classification (in Korematsu) would eventually be forgotten, leaving the constitutionality of the classification as the lesson of the case."[7] Jackson believed the court would never be able to perform its duty if it joined the executive in making constitutional shortcuts.[7]

In the end, Justice Jackson withdrew his concurring opinion perhaps in response to Justice Stone or perhaps in response to Justice Felix Frankfurter's Soliloquy. The Soliloquy was a bizarre memo addressed to the saboteurs in which Frankfurter urged the court to issue a single opinion.[3] Regardless of why he chose to withdraw the opinion, his memorandum offers insight into an issue which divided the Court and remains divisive today.

Quirin and the Guantanamo Bay Military Commissions

Guantanamo Bay Cases

In the days after the Military Order on November 13, 2001 to try suspected terrorists, and particularly those detained at Guantanamo Bay, in Military Commissions, Ex Parte Quirin was frequently cited as the legal basis for the Order. Upon the capture of the Quirin saboteurs, President Roosevelt issued an Executive Order, upon which the Bush Order was putatively modeled, which authorized military commissions to try the captives for, among other things, violations of the law of war, for providing the enemy with intelligence and spying.

The Quirin decision held that extant legislation authorized the use of Military Commissions for the types of offenses in question. While in Quirin there was public law passed with the title "declaration of war" and three Articles (15, 81 and 82) of the Articles of War. President Bush's claim relies on a congressional Joint Resolution used as a formal declaration of war (which has no precise legal definition in the US) under the War Powers Resolution, and two provisions of the Uniform Code of Military Justice, the successor to the Article of War.[citation needed]

The validity of this case as a basis for use of military tribunals in the War on Terrorism as permitted by the Geneva Conventions has been disputed.[8][9][10] A report by the American Bar Association commenting on this case, states:

The Quirin case, however, does not stand for the proposition that detainees may be held incommunicado and denied access to counsel; the defendants in Quirin were able to seek review and they were represented by counsel. In Quirin, "The question for decision is whether the detention of petitioners for trial by Military Commission ... is in conformity with the laws and Constitution of the United States." Quirin, 317 U.S. at 18. Since the Supreme Court has decided that even enemy aliens not lawfully within the United States are entitled to review under the circumstances of Quirin, that right could hardly be denied to U.S. citizens and other persons lawfully present in the United States, especially when held without any charges at all.[11]

Since the 1942 Quirin case, the US signed and ratified the 1949 Geneva Conventions, which were thus considered to be a part of U.S. municipal law, in accordance with Article 6, paragraph 2, of the Constitution of the United States (the Supremacy Clause).[12] In addition the US Supreme Court invalidated this premise, in Hamdan v. Rumsfeld, by ruling that Common Article Three of the Geneva Conventions applies to detainees in the War on Terror, and that the Military Tribunals used to try these suspects were in violation of US and international law.[13] In response to Hamdan, Congress passed the Military Commissions Act of 2006, which President Bush signed into law on October 17, 2006. The Act's stated purpose was "To authorize trial by military commission for violations of the law of war, and for other purposes." The Act explicitly forbids the invocation of Geneva when executing the writ of habeas corpus or in other civil actions.

Further reading

  • Rehnquist, William H. (1998). All the Laws but One: Civil Liberties in Wartime. New York: William Morrow & Co. ISBN 0-688-05142-1. 

See also


  1. ^
  2. ^ William O. Douglas, The Court Years, 1939-1975, at 138-39 (New York: Vintage Books,1981)
  3. ^ a b Military Tribunal: Quirin Precedent by Louis Fisher in the March 22, 2002 "Congressional Research Report" for Congress.
  5. ^ a b c d Full text of Justice Jackson's Unpublished Opinion in Ex Parte Quirin in the Spring 2006 Green Bag Law Journal, volume 9, number 3
  6. ^ Korematsu v. United States Full text of the decision courtesy of
  7. ^ a b Dennis J. Hutchinson, "The Achilles Heel" of the Constitution: Justice Jackson and the Japanese Exclusion Cases, 2002 Sup. Ct. Rev. 455, 488.
  8. ^ War and the Constitution by George P. Fletcher in The American Prospect, January 1, 2002 (alternate URL) and the response, The Military Tribunal Debate
  9. ^ Revised ACLU Interested Person's Memo Urging Congress to Reject Power to Detain Suspected Terrorists Indefinitely Without Charge, Trial or a Right to Counsel by ACLU
  10. ^ TERRORISM AND THE RULE OF LAW by Nicholas Cowdery AM QC, President, International Association of Prosecutors Director of Public Prosecutions, NSW, Australia, at International Association of Prosecutors 8th Annual Conference, Washington, D.C. - 10-14 August 2003.
  11. ^ Report by the American Bar Association in PDF (footnote omitted).
  12. ^ Wikisource:Ryuichi Shimoda et al. v. The State#II. Evaluation of the act of bombing according to municipal law Paragraph 2
  13. ^ The Gitmo Fallout: The fight over the Hamdan ruling heats up—as fears about its reach escalate. By Michael Isikoff and Stuart Taylor Jr., Newsweek, July 17, 2006

External links


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