Landmark Supreme Court Case: Ex Parte Quirin (1942)

by Kwaisi France · August 8, 2020

Ex Parte Quirin (1942) is the 82nd landmark Supreme Court case, sixth in the Foreign Policy module, featured in the KTB Prep American Government and Civics series designed to acquaint users with the origins, concepts, organizations, and policies of the United States government and political system. The goal is greater familiarization with the rights and obligations of citizenship at the local, state, national, and global levels and the history of our nation as a democracy. While there is overlap, these landmark cases are separated into cases addressing:

The Supreme Court

The Supreme Court is the highest court in the United States. Article III of the U.S. Constitution created the Supreme Court and authorized Congress to pass laws establishing a system of lower courts. The Constitution elaborated neither the exact powers and prerogatives of the Supreme Court nor the organization of the Judicial Branch as a whole. Thus, it has been left to Congress and to the Justices of the Court through their decisions to develop the Federal Judiciary and a body of Federal law.

The number of Justices on the Supreme Court changed six times before settling at the present total of nine in 1869. Since the formation of the Court in 1790, there have been only 17 Chief Justices* and 102 Associate Justices, with Justices serving for an average of 16 years. On average a new Justice joins the Court almost every two years.

The Supreme Court of the United States hears about 100 to 150 appeals of the more than 7,000 cases it is asked to review every year. That means the decisions made by the 12 Circuit Courts of Appeals across the country and the Federal Circuit Court are the last word in thousands of cases.

Court of Appeals

In the federal court system’s present form, 94 district level trial courts and 13 courts of appeals sit below the Supreme Court. The 94 federal judicial districts are organized into 12 regional circuits, each of which has a court of appeals. The appellate court’s task is to determine whether or not the law was applied correctly in the trial court. Appeals courts consist of three judges and do not use a jury.

The appellate courts do not retry cases or hear new evidence. They do not hear witnesses testify. There is no jury. Appellate courts review the procedures and the decisions in the trial court to make sure that the proceedings were fair and that the proper law was applied correctly.

A court of appeals hears challenges to district court decisions from courts located within its circuit, as well as appeals from decisions of federal administrative agencies. In addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as those involving patent laws, and cases decided by the U.S. Court of International Trade and the U.S. Court of Federal Claims.

District Courts

The nation’s 94 trial courts are called U.S. District Courts. At a trial in a U.S. District Court, witnesses give testimony and a judge or jury decides who is guilty or not guilty — or who is liable or not liable. District courts resolve disputes by determining the facts and applying legal principles to decide who is right.

Trial courts include the district judge who tries the case and a jury that decides the case. Magistrate judges assist district judges in preparing cases for trial. They may also conduct trials in misdemeanor cases.

There is at least one district court in each state, and the District of Columbia. Each district includes a U.S. bankruptcy court as a unit of the district court.

Bankruptcy Courts

Federal courts have exclusive jurisdiction over bankruptcy cases involving personal, business, or farm bankruptcy. This means a bankruptcy case cannot be filed in state court. Bankruptcy Appellate Panels (BAPs) are 3-judge panels authorized to hear appeals of bankruptcy court decisions. These panels are a unit of the federal courts of appeals, and must be established by that circuit. Five circuits have established panels: First Circuit, Sixth Circuit, Eighth Circuit, Ninth Circuit, and Tenth Circuit.

Ex Parte Quirin (1942)

Ex Parte Quirin Facts:

Ex parte Milligan (1866) ruled that the federal government could not establish military tribunals to try civilians in areas where civilian courts were functioning. Eight men: Ernest Peter Burger, George John Dasch, Herbert Hans Haupt, Heinrich Heinck, Edward Kerling, Herman Neubauer, Richard Quirin and Werner Thiel. Burger and Haupt were U.S. citizens all born born in Germany and all having lived in the United States. All returned to Germany between 1933 and 1941.

After the declaration of war between the United States and Nazi Germany in December 1941 following the Japanese sneak attack on Pearl Harbor, 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 June 13, 1942 carrying explosives. The remaining four boarded the German submarine U-584 which carried them from France to Ponte Vedra Beach, Florida.

On June 16, 1942, they came ashore during the hours of darkness. All eight wore full or partial German military uniforms so that if they were captured upon landing, they would be entitled to prisoner-of-war status rather than being treated as spies. 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 other key targets in the United States, for which they or their relatives in Germany were to receive salary payments from the German government.

Shortly after the landings, Burger and Dasch backed out of the mission turning 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, D.C.

On July 2, 1942, President Franklin D. Roosevelt issued Executive Proclamation 2561 establishing a military tribunal to prosecute the Germans. Placed before a seven-member military commission, the Germans were charged with:

violating the law of war;
violating Article 81 of the Articles of War, defining the offense of corresponding with or giving intelligence to the enemy;
violating Article 82 of the Articles of War, defining the offense of spying;
conspiracy to commit the offenses alleged in the first three charges.

From July 8 to August 1, 1942, the trial took place in Assembly Hall #1 on the fifth floor of the Department of Justice building in Washington D.C. On August 3, 1942, two days after the trial ended, all eight were found guilty and sentenced to death.

Arguing that the President exceeded his power in ordering the commission and that the Fifth and Sixth Amendments to the Constitution protect their rights to a regular trial, seven of the eight conspirators, not including Dasch, filed petitions for a writ of habeas corpus in Federal District Court. Their claims were denied, and they appealed to the U.S. Court of Appeals for the District of Columbia.

Before the court ruled, however, they filed for hearing before the Supreme Court and, separately, filed petitions for habeas corpus directly with the Court. The Court, sitting in a special term, agreed to hear the cases.

Ex Parte Quirin Legal Questions and Answers

Q: Did the President exceed his authority in ordering a trial by military commission for the German saboteurs, thereby violating their rights under the Fifth and Sixth Amendments?

A: No.the conspirators, as spies without uniform whose purpose was sabotage, violated the law of war and were therefore unlawful enemy combatants.

Ex Parte Quirin Conclusion

Unanimous holding jurisdiction of a United States military tribunal over the trial of several German saboteurs in the United States was constitutional. Congress had, under the Articles of War, authorized trial by military commission for unlawful enemy combatants; therefore, the President had not exceeded his power. Quirin has been cited as a precedent for the trial by military commission of any unlawful combatant against the United States.

The Fifth and Sixth Amendments “did not enlarge the right to jury trial” beyond those cases where it was understood by the framers to have been appropriate. The rights of the conspirators were not violated because the amendments cannot be read:

as either abolishing all trials by military tribunals, save those of the personnel of our own armed forces, or, what in effect comes to the same thing, as imposing on all such tribunals the necessity of proceeding against unlawful enemy belligerents only on presentment and trial by jury.”

Roosevelt later commuted the death sentence of Dasch to 30 years in prison 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. The remaining six were executed in the electric chair on the third floor of the District of Columbia jail on August 8 and buried in a potter’s field called Blue Plains in the Anacostia area of Washington.

In 1948, Dasch and Burger were released by President Harry S. Truman and deported to the American Zone of occupied 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.

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. This memorandum was written two years before his dissent in Korematsu v. United States (1944) and a decade before his famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer (1952). 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 first decade of the 21st century.

In the days after the military order on November 13, 2001, to try suspected terrorists, and particularly those detained at Guantanamo Bay, before military commissions, Ex parte Quirin was frequently cited as the legal basis for the order. Upon the capture of the Quirin saboteurs, President Roosevelt had issued an executive order, upon which the order issued by President Bush was putatively modeled; this authorized military commissions to try the captives for, among other offenses, violations of the laws of war, providing the enemy with intelligence, and spying.

Post Quirin, 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 VI, paragraph 2, of the Constitution of the United States (the Supremacy Clause). In addition the Supreme Court of the United States invalidated this premise, in Hamdan v. Rumsfeld (2006), by ruling that Common Article Three of the Geneva Conventions applies to detainees in the “War on Terror”, and that the Guantanamo military commission process used to try these suspects was in violation of U.S. and international law.

In response to Hamdan, Congress passed the Military Commissions Act 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.

Michael Walzer for the Big Think on Ex Parte Quirin (1942) and the treatment of enemy combatants.

Next Foreign Policy Case: Reid v. Covert (1957)

Previous Foreign Policy Case: U.S. v. Curtiss-Wright (1936)

Next Case: Chaplinsky v. New Hampshire (1942)

Previous Case: Betts v. Brady (1942)

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