Ex parte Quirin
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)
Holding
The Court upheld the jurisdiction of a United States military tribunal over the trial of several German saboteurs in the United States.
Court membership
Chief Justice Harlan F. Stone Associate Justices Owen J. Roberts · Hugo Black Stanley F. Reed · Felix Frankfurter William O. Douglas · Frank Murphy James F. Byrnes · Robert H. Jackson
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 in part that:

…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.

Case[link]

Background[link]

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. 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[link]

President Franklin D. Roosevelt convened^{[clarification needed]} a secret military tribunal on July 2, 1942 which sentenced the eight men to death.^{[1][not in citation given]} The President later commuted the death sentence of Dasch to 30 years 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. 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[link]

The Supreme Court had issued its decision on July 31, 1942, but did not release a full opinion until October 29, 1942.

Decision controversy[link]

Although the court issued a unanimous opinion in Quirin, the road to the final decision was marked by disagreement. Justice Douglas wrote 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] Chief 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 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 legal implications during the War on Terror of the 2000s (decade).^[4]

Justice Jackson's draft opinion[link]

In his draft opinion, Jackson attributed 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 also stated 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 would be a dangerous precedent and that 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[link]

Guantanamo Bay cases[link]

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.

Quirin held 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 U.S. 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 Supreme Court of the United States 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.

See also[link]

• Ex parte Milligan
• Hamdi v. Rumsfeld
• Hamdan v. Rumsfeld
• George John Dasch
• List of United States Supreme Court cases, volume 317

References[link]

Further reading[link]

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

External links[link]

Wikisource has original text related to this article: Ex parte Quirin

• Ex parte Quirin, U.S. Supreme Court Decision (1942)
• Story of Herbert Haupt
• The Facts Don't Matter An hour-long This American Life radio episode (original air date 3/12/2004) about the events leading up to Ex parte Quirin
• Homefront Confrontational: How the War on Terror Affects Access to Information and the Publics Right to Know a report issued by the Reporters Committee for the Freedom of the Press
• Fisher, Louis. Nazi Saboteurs on Trial: A Military Tribunal and American Law. 2nd ed. University Press of Kansas (2005)
• Nazi Saboteur Tribunal Transcript
• Abella, Alex & Gordon, Scott, Shadow Enemies: Hitler's Secret Terrorist Plot Against the United States, Guilford, CT: Lyons Press, 2002. ISBN 1-58574-722-X
• Rachlis, Eugene, They Came to Kill: The Story of Eight Nazi Saboteurs in America, New York: Random House, 1961.

This article needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (November 2007)

John Peter Zenger (October 26, 1697 – July 28, 1746) was a German-American printer, publisher, editor and journalist in New York City. He was a defendant in a landmark legal case in American jurisprudence that determined that truth was a defense against charges of libel and "laid the foundation for American press freedom."^[1]

Zenger case in history[link]

The "Penman of the Constitution", Gouverneur Morris, wrote this of the Zenger case: "The trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America."^[2]

Zenger and freedom of the press[link]

In the later part of 1733 John Peter Zenger began publishing a newspaper in New York to voice opposition to the onerous policies of newly appointed colonial governor William Cosby. Upon his arrival in New York, Cosby plunged into a rancorous quarrel with the Council of the colony over his salary. Unable to control the state's Supreme Court he removed Chief Justice Lewis Morris, replacing him with James DeLancey of the royal party. Supported by members of the popular party, Zenger's New-York Weekly Journal continued to publish articles critical of the royal governor. Finally, Cosby issued a proclamation condemning the newspaper's "divers scandalous, virulent, false and seditious reflections." On Sunday, November 17, 1734, Zenger was arrested and charged with seditious libel. After more than eight months in prison, Zenger went to trial defended by illustrious Philadelphia lawyer Andrew Hamilton. The case was now a cause célèbre with public interest at fever-pitch. Rebuffed repeatedly by Chief Justice DeLancey during the trial, Hamilton decided to plead his client's case directly to the jury. After the arguments for both sides were finished, the jury was retired, only to return in ten minutes with a verdict of not guilty.

To better understand the significance of this historic case it is important to examine an actual issue of the New-York Daily Journal prior to Zenger's arrest. Here we see a typical attack against the government in Zenger's original newspaper as it originally appeared more than 260 years ago. Page one of this issue dated February 25, 1733,^[3] carries an article under the pseudonym "Cato". This article gave its readers a preview of the same argument Attorney Hamilton would present 18 months later in the government's libel case against Zenger: That the truth is an absolute defense against libel. In successfully defending Zenger in this landmark case, Hamilton established the precedent that a statement, even if defamatory, is not libelous if it can be proved, thus affirming freedom of the press in America.^[4]

Cato writes:

But this Doctrine ('A lible (sic) is not less a Libel for being true') only holds true as to private and personal failings; and it is quite otherwise when the Crimes of Men come to Affect the Publick? Every Crime against the publick, is a great crime? – The exposing therefore of Publick Wickedness, as it is a Duty which every Man owes to the Truth and his Country, can never be a Libel in the Nature of Things? – it has been hitherto generally understood, that there was no other Libels but those against Magistrates and those against private Men. Now to me there seems to be a Third set of Libels, full as Destructive as any of the former can probably be, I mean Libels against the People. – I have indeed often wondered that the Inveighing against the Interest of the People, and calling their Liberty in Question? has never been made an express Crime. – I know not what Reason is if sapping and betraying the Liberties of a People be not Treason. – almost all over the Earth, the People for one Injury they do their Governor, receive Ten Thousand from them. Nay, in some Countries it is made Death and Damnation, not to bear all the Oppression and Cruelties, which Men made Wanton by Power inflict upon those that gave it them.

See also[link]

• Areopagitica

References[link]

External links[link]

• Historybuff.com First report of the trial
• Zenger Trial
• John Peter Zenger
• The Crown v. Zenger
• Considering Zenger: Partisan Politics and the Legal Profession in Provincial New York
• "Peter Zenger and Freedom of the Press | Early American Bookmarks"
•  "Zenger, John Peter". Appletons' Cyclopædia of American Biography. 1889. 
• John Peter Zenger at Find a Grave