USA, ex rel Richard Quirin v Cox

• Date: 29 October 1942
• Court: U.S. Supreme Court
• Docket Number: Case No. 168

United States. Supreme Court.

(Stone, C.J.; Roberts, Black, Reed, Frankfurter, Douglas, Jackson, Byrnes, JJ.)

Case No. 168

Ex parte Quirin et Al.

United States of America ex Rel. Richard Quirin

and

Cox, Provost Marshal, U.S. Army. (And Six Other Cases.)

Laws of War — War Crimes — Spies — Lawful and Unlawful Combatants — Saboteurs as Spies — Absence of Actual Commission of Sabotage — United States Rules of Warfare and Hague Convention No. IV.

The Facts.—These were seven applications for leave to file petitions for habeas corpus in the Supreme Court, and seven petitions for certiorari to review orders of the District Court of the United States for the District of Columbia denying applications for leave to file petitions for habeas corpus in that court. The facts were undisputed. The seven petitioners, and one other, were saboteurs who, after the declaration of war between the United States and the German Reich, had received training at a sabotage school near Berlin, Germany, and had been landed by German submarines in June, 1942, on the coast of the United States, four in Florida and four on Long Island, New York, in coastal defence zones of the United States patrolled by the Coast Guard or Army under instructions to detect the landing of enemy agents. On instructions of an officer of the German High Command, all of the petitioners wore uniforms or parts of uniforms of the German Marine Infantry while landing in the United States. They brought with them explosives, fuses, incendiary and timing devices, and immediately after landing, buried their uniforms and the materials mentioned and proceeded in civilian dress to various poiuts in the United States. All of the petitioners had been in Germany; all had lived in the United States; all had returned to Germany between 1933 and 1941; all except Haupt1 were citizens of the German Reich, with which the United States was at war; and all had received instructions from the German High Command to destroy war industries, railroad centres, bridges, power plants, and other war facilities in the United States in return for regular salary payments from the German Government. On June 27, 1942, all of the petitioners were arrested in civilian clothing in New York or Chicago by the Federal Bureau of Investigation.

On July 2, 1942, the President of the United States, as President and as Commander-in-Chief of the Army and Navy, proclaimed 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, or any territory or possession thereof, 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; and [that] such persons shall not be privileged to seek any remedy or maintain any proceeding directly or indirectly, or to have any such remedy or proceeding sought on their behalf, in the courts of the United States, or of its States, territories, and possessions”, except as otherwise authorized by the Attorney-General with the approval of the Secretary of War: 7 Federal Register 5101. … On the same

day the President, as President and Commander-in-Chief, appointed a military tribunal to try the eight named saboteurs “for offenses against the law of war and the Articles of War”, in accordance with prescribed regulations: 7 Federal Register 5103. Pursuant to the direction of the Attorney-General, the Federal Bureau of Investigation surrendered the petitioners to respondent, Brig-Gen. Cox, Provost Marshal of the Military District of Washington. On July 3, 1942, the Army filed charges against the petitioners before the Military Commission, charging petitioners with violation of the law of war by passing through our defense lines in civilian dress in order to commit sabotage, espionage and other hostile acts, and with violations of Articles 81 and 82 of the Articles of War defining spying and aiding the enemy, and with conspiracy to do all these things. The trial proceeded in strictest secrecy. On July 27 the defence rested and applied to the District Court for writs of habeas corpus.1 The writs were denied on July 28 (47 F. Supp. 431) and the Supreme Court met in special session on July 29

Held (per Stone, C.J.): that the orders of the District Court must be affirmed and leave to file petitions for habeas corpus in the Supreme Court must be denied.

“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 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: Ex parte Miliigan, supra, [4 Wall. 2] 119, 132 Tumey v. OhioUNK, 273 U.S. 510, 535; Hill v. TexasUNK, 316 U.S. 400, 406. 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, sec. 8, cl. 1; ‘To raise and support Armies’, ‘To provide and maintain a Navy’, Art. I, sec. 8, cl. 12, 13; and ‘To make Rules for the Government and Regulation of the land and naval Forces’, Art. I, sec, 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, sec. 8, cl. 11, and ‘To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations’, Art. I, sec. 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...