Earlier this week I posted a paper summarizing the prominent presidential powers cases that could be possible options for the Supreme Court overrule topic. My general recommendation was that the area was promising but that the lack of research advocating an overrule of any of these cases. Based on further reading about the nature of overrules and substantial additional research I know believe that it would be promising to include Ex parte Quirin in an overrule topic.
Ex parte Quirin, 317 U.S. 1 (1942) Argued
Summary taken from: Major Michael O. Lacey, Professor, International and Operational Law Department, The Judge Advocate General's School, United States Army, Charlottesville, Virginia, March 2002, Army Lawyer, 2002 Army Law. 41 “Military Commissions: A Historical Survey”[1] p. 45
In
early 1942, two Nazi U-boats landed eight German saboteurs on
United
States Attorney General Francis Biddle and the defense attorneys for the
Germans convinced the Supreme Court to review the legitimacy of the tribunal
even before filing a writ of habeas corpus. n46 The
defense team launched a variety of attacks on the commission, including its
jurisdiction, the lack of constitutional safeguards, and the issue of the
alleged citizenship of one of the defendants (Haupt),
similar to Milligan. They failed on all fronts. The Court reaffirmed the
jurisdiction and legitimacy of the military commission: "By the Articles
of War, and especially Article 15, Congress has explicitly provided, so far as
it may constitutionally do so, that military tribunals shall have jurisdiction
to try offenders or offenses against the law of war in appropriate cases."
n47
In
Quirin, the Court also discussed the important difference between the lawful
and unlawful combatant--in language as relevant today as it was sixty years
ago:
By universal agreement and practice, the law of war draws a distinction between . . . those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by the 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. n48
The issue of the Quirin precedent becomes very significant in the context of the Supreme Court’s recent decision in Hamdi v. Rumsfeld. In Hamdi, the court upheld the ability of the administration to detain anyone, including American citizens, as enemy combatants. It is unquestionable that the Court’s affirmed this expression of presidential power directly because of the Quirin decision.
Nicholas
Green,
The
plurality opinion, written by Justice O'Connor, n66 proceeds from the
standpoint that the President and Congress are in agreement on detaining
citizens as enemy combatants. n67 The Court uses the Authorization for Use of Military
Force to support this proposition. n68 This
agreement is important for the reasons outlined in Justice Jackson's
concurrence in Youngstown Sheet & Tube Co. v. Sawyer. n69 As Justice
Jackson wrote, the President's "authority is at its maximum" when he
acts with congressional authority, "for it includes all that he possesses
in his own right plus all that Congress can delegate." n70 The President's
actions are usually unconstitutional in this situation only if "the
Federal Government as an undivided whole lacks power." n71 By finding
authorization for Hamdi's detention in the
Authorization for Use of Military Force, the Court did not have to deal with
the issue of the allocation of war powers to and among each of the political
branches. Therefore, the Court decided the issue in the broadest constitutional
sense. n72
[*588] The
Court clearly stated, "There is no bar to this Nation's holding one of its
own citizens as an enemy combatant." n73 This
finding was based solely on Ex parte Quirin. n74
Despite the Hamdi court’s finding of need for judicial review in such matters, the legitimacy conferred through Quirin and now articulated in our contemporary political power is a significant victory for the presidency.
Benjamin
Wittes, editorial writer for the Washington Post,
April/May 2005, Policy Review, #130, “Checks, Balances, and Wartime Detainees” http://www.policyreview.org/apr05/wittes.html
But
if Hamdi establishes that the executive’s hand is not entirely free, it by no
means clarifies that judicial review — even in cases involving citizens — will
function as a meaningful, as opposed to a symbolic, restraint on executive
behavior. For starters, the government won on a truly fundamental point in the
case: The plurality reaffirmed the power in principle of the president to
detain a citizen as an enemy combatant — a power it articulated in Ex parte
Quirin — writing that “[t]here is no
bar to this Nation’s holding one of its own citizens as an enemy combatant.” In
other words, the plurality allowed the military to exempt an individual from
the full protections of criminal process on the basis of a finding that he has
enlisted in a foreign military struggle against the
Like Korematsu, there has been debate about the controlling nature of Quirin, but interpretations of these recent cases suggest that it remains a crucial precedent for detention matters.
Neal
Richardson, deputy district attorney in Denver & Spencer Crona is a Denver attorney, July 4, 2004, The Denver Post,
p. E1 “The Supreme Court and the war on terror”
In
reaching her rulings, O'Connor repeatedly cited the World War II case of Ex
parte Quirin, in which the Supreme
Court affirmed the government's authority to detain and try accused enemy war
criminals - Nazi saboteurs in that case, including an American citizen - by
military tribunal. Ever since President Bush issued an order for trial of
terrorists by military tribunals, we have heard the tiresome refrain that the
1942 Quirin case was a bad precedent because it involved a traditional
declared war, and a Supreme Court "cowed by a popular wartime
president," in the same era as the notorious Japanese-American detention
camps. As of last Monday, we have Supreme Court opinions in which a majority
of justices regard Quirin as strong and
settled precedent that guides the courts on these issues. (Justice
Clarence Thomas sided completely with the government.)
In the original version of the paper I wasn’t comfortable with the options to overrule the Quirin precedent. Based on Ryan Galloway’s interim topic paper overrules include what happens when “Overrule is also used to describe what a superior court does to a precedent that it decides should no longer be controlling law.”[2] There are several ways to argue that Quirin should not be controlling law in the current climate.
All of these approaches center on the difference between the facts confronted by the Court in 1942 and in 2006.
Kenneth
Roth, Executive Director of Human Rights Watch, Jan/Feb 2004, Foreign Affairs,
p. 2, “The Law of War in the War on Terror”
The
Justice Department has defended the administration's use of war rules by citing
a
There
are several reasons, however, why Quirin does not justify the Bush
administration's broad use of war rules. First, the saboteurs in Quirin were
agents of a government --
Having found that these differences are significant, there are ample legal opinions that argue in favor of adjusting Quirin’s basis as controlling law, including:
The option
to ground current detention policy in our very different habeas corpus law.
A Christopher
Bryant & Carl Tobias, Associate Professor, University of Nevada, Las Vegas
School of Law, 2003, Wisconsin Law Review, 2003 Wis. L. Rev. 309, “Civil
Liberties In A Time Of Terror: Article: Quirin Revisited” p. 363-364
In
the wake of the September 11 terrorist attacks, the once relatively obscure
Supreme Court decision in Ex parte Quirin has become critical to legal and
constitutional debates about civil liberties' import during times of
international terror. The Bush administration has frequently invoked the ruling
to support its numerous aggressive assertions regarding authority to wage a war
on terrorism. Our primary focus is
the contention by the Bush administration that the Quirin precedent limits a
federal habeas corpus proceeding which challenges a military commission order
to the threshold question of whether commission jurisdiction over the defendant
and the alleged offense is lawful, although we also briefly treat
administration reliance on Quirin in recent filings that implicate the Hamdi
and Padilla cases.
Our
review of the Quirin opinion and of the legal context in which the Court issued
it contests the administration's assertion that the case mandates such an
extremely narrow judicial role.
Careful study of the history, arguments, and most importantly Chief Justice
Stone's opinion, reveals that Supreme Court review of President Roosevelt's
commitment of the matter to a military commission was neither as limited nor as
deferential as the Bush administration has suggested. Moreover, by
recovering the state of federal habeas corpus law circa 1942, we demonstrate
that the Supreme Court's characterization of its role as assessing the
military commission's "jurisdiction" was consonant with then-current
understandings of the proper scope of inquiry in any federal [*364]
habeas corpus proceeding, including those which involved petitions
filed by prisoners incarcerated under federal and state judicial judgments.
That the Court declined to accord President Roosevelt's military commission any
less deference than it gave a lone state or federal trial court judge in 1942
must not be anachronistically construed as a definitive ruling that judicial
review is singularly inappropriate when the judgments of military commissions
are at issue. Rather, Quirin
should be limited to its extraordinary facts, as Chief Justice
Stone's opinion for the Court clearly stated, and understood as a relic of an unduly narrow and long-abandoned
approach to federal habeas corpus jurisdiction.
Or to rely on the dissent in Hamdi, from Justice Scalia, who argued that Quirin should be interpreted quite narrowly.
Nicholas
Green,
While
making its broad assertions supporting judicial review, the Court held the
President can indefinitely detain citizens as enemy combatants. The Court
relied almost solely on Ex parte Quirin in reaching this holding. It chose to
interpret the case and its precedential value broadly. A narrower and equally plausible interpretation of Quirin was available
to the Court, as Justice Scalia argued in his dissent. However, the Court
chose to defer to the President rather than exercise the judicial power it
appeared to support.
Additionally, there is the argument that without the Quirin precedent, detainees could not be subject to military tribunals.
Scott
Reid,
Lawful
combatancy is the threshold issue for determining how
to punish a detainee for his unlawful acts. The POW convention guarantees lawful combatants a trial under the same
laws that would apply to the detaining power’s own troops under similar
circumstances.73 In the 1942 case Ex Parte
Quirin, the
The law
of war draws a distinction 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.74
The
It is thus apparent that ample options exist to reduce the precedential value of Quirin. Affirmatives choosing this option would be able to articulate a variety of potential limitations on executive authority as they pertain to detain and tribunals.
Significantly, it is difficult to argue that overruling
Quirin would enhance executive authority. The primary holding, that the
executive has such authority, is only limited by the most basic judicial review
and that standard wasn’t imposed or required by the Quirin opinion. This uni-directionality is different than the 2004 cases,
including Hamdi. After reviewing the
Hamdi dissent by Justice Scalia, which makes many of the damming arguments
about Querin, including describing it as “not this
Court's finest hour,”[3] it
may be tempting to simply include that case in the topic. The concern here is
that these decisions did impose some level of review and there is less
literature to support a direct reversal of a recent case. Unlike the sixty
years and the very different wars, there is much less factual grounding to
reverse or alter such doctrine. Unlike other older presidential powers cases
like
Negative teams who choose to defend the current interpretation and precedential value of Quirin can certainly turn to the numerous legal and military schools who have identified the damming effects of the president’s ability to fight al-Qaeda with dramatically limited authority to detain.
For those teams who strategically or personally choose to engage other ways to address the issue, there are ample counterplan options, including adjusting the nature of current detention policy and legislative reform. If anything, one of the most interesting articles sets up options for both sides. In what at first glance appears to be a tremendous advocacy for topical action, we have (courtesy of two former NDT alums)
Neal K. Katyal, Professor, Georgetown Law Center, & Laurence H. Tribe, Professor of Constitutional Law, Harvard Law School, April 2002, Yale Law Journal, 111 Yale L.J. 1259, “Waging War, Deciding Guilt: Trying the Military Tribunals” p. 1290-1291
Finally,
to the extent that Quirin did provide the President with broad authority in
interpreting Article of War 15, there are reasons to discount the case itself
as statutory precedent. After all, just two years after Quirin, the same
Supreme Court upheld government orders that imposed severe curtailments of
liberty on Japanese Americans during World War II in the infamous Korematsu
case. n115 Justice Frankfurter, with characteristic [*1291]
understatement, called Quirin "not a happy precedent."
n116 As David Danelski has shown, a principal
reason for authorization of these military tribunals was the government's wish
to cover up the evidence of the FBI's bungling of the case. n117
And it also appears that some highly questionable ex parte arm-twisting by the
executive may have spurred the Supreme Court's unanimous decision. n118 Despite the Court's sometime-adherence to a strong
stare decisis rule for its own prior legislative interpretations, the Court
does at times overrule them - over eighty times in twenty-seven years,
according to one incisive analysis. n119 Quirin
plainly fits the criteria typically offered for judicial confinement or
reconsideration: It was a decision rendered under extreme time pressure, n120
with respect to which there are virtually no reliance interests at stake, n121
and where the statute itself has constitutional dimensions suggesting that its
construction should be guided by relevant developments in constitutional law.
n122
At the same time, the same article is the source of a very detailed legislative reform to reduce the problems of such presidential authority.
Neal K. Katyal, Professor, Georgetown Law Center, & Laurence H.
Tribe, Professor of Constitutional Law, Harvard Law School, April 2002, Yale
Law Journal, 111 Yale L.J. 1259, “Waging War, Deciding Guilt: Trying the
Military Tribunals” p. 1308-1309
President Bush has claimed the power to create and
operate a system for adjudicating guilt and dispensing justice through military
tribunals without explicit congressional authorization - threatening to
establish a precedent that future presidents may seek to invoke to circumvent
the need for legislative involvement in other unilaterally defined emergencies.
It is our hope that Congress will avert that danger through appropriate
legislation. But President Bush's constitutional claims will remain even if
Congress acts. While those claims deserve careful and respectful [*1309] consideration, we believe they do not comport
with our Constitution's structure, designed in large measure to secure
individual rights by resisting the centralization of unchecked power. Even
those presidents who tested the constitutional waters, like Abraham Lincoln and
Harry Truman, asked Congress to ratify their actions and promised obedience to
whatever decision Congress made. n186 The present
Military Order lacks this basic promise.
An executive decree, in today's circumstances, that
purports to authorize the trial of unlawful belligerents in military tribunals
for terrorism in the
A closer
question would be presented by military trials outside the
The article, like much of the literature, recognizes the controversy and provides some support for each side. The war on terror is a very complex and timely subject for legal debates and with the expected decision in Hamdan vs. Rumsfeld we can only expect this debate to become more sophisticated. The original war on terror court paper explores the likely outcome in Hamdan, but the important part for uniqueness grounds is that it remains very unlikely that the power expressed in Quirin, to label someone as an enemy combatant and remove them from civilian justice, will be reversed. It is significant that only Scalia expressed this view in Hamdi. For all of these reasons, I believe Quirin would be a valuable addition to the topic.
[1] n31 JULIUS J. MARKE, VIGNETTES OF LEGAL HISTORY 116
(1965).
n43 Ex parte Quirin, 317 U.S. 1 (1942).
n44
n45
N46 Mauro, supra note 3, at
1.
n47 Quirin, 317
n48
[2]
[3] Dissent
of Justice Scalia, joined by Justice Stevens in Yaser
Esam Hamdi And Esam Fouad Hamdi, As Next Friend Of Yaser
Esam Hamdi, Petition-Ers V.
Donald H. Rumsfeld, Secretary Of Defense, Et Al.m http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-6696