1942 October 12

Supreme Court Opinion in “Ex Parte Quirin” — Ten Weeks Late


The Supreme Court finally issued its written opinion in Ex parte Quirin on this day, upholding the constitutionality of the military commission created by President Franklin Roosevelt to try eight German saboteurs. The written opinion came two and a half months after the Court had decided the case on July 31, 1942.

On the 12th of June 1942, six months after Pearl Harbor and the U.S. declaration of war against Japan and Germany, eight German saboteurs landed in the U.S. (four on Long Island and four in Florida). All had previously lived in the U.S. and spoke English. The affair immediately became a comic opera, but then quickly turned into a civil liberties tragedy. One of the saboteurs soon turned himself in to the FBI and all the others were arrested. President Roosevelt was determined to have them quickly executed; and not trusting civilian courts, he created a special military commission to try them. In fact, in an act of utter contempt for due process, he told Attorney General Francis Biddle that he would not turn them over to civilian authorities even if ordered by a Court. Meanwhile, in a clear violation of judicial ethics, Supreme Court Justice Felix Frankfurter secretly advised Roosevelt on how to frame the military commission so as to pass the scrutiny of the Supreme Court. Roosevelt established the military commission by executive order in July 1942. The saboteurs were tried in a secret session before the military commission and convicted on August 3, 1942.

The Supreme Court, in an extraordinary special session, had upheld the constitutionality of the military commission, in Ex parte Quirin, on July 31, 1942. Roosevelt commuted the sentences of two of the Germans because they had cooperated with the prosecution, and the other six were executed on August 8, 1942. In its original decision in Quirin, however, the Supreme Court did not deliver a written opinion, apparently because the justices could not agree on a rationale for upholding the military commission and because they evidently felt pressured to decide and let the executions proceed as quickly as possible. It finally delivered a written opinion on this day.

There were many civil liberties problems surrounding the entire affair: (1) the legitimacy of the military commission; (2) President Roosevelt’s determination to execute them and contempt for civil procedures; (3) Justice Frankfurter’s private communications with Roosevelt, in clear violation of judicial ethics; and (4) the Supreme Court’s haste in deciding the case but not delivering a written opinion to justify the decision.

Although largely forgotten by most Americans, the military commission and the Supreme Court’s decision in Quirin set a precedent for the military commissions established by President George W. Bush, on November 13, 2001, after the terrorist attacks on September 11, 2001. Some historians and legal scholars argue that the WW II commission was legally flawed and should not have been used as precedent for the later commissions.

The Court: “The Court holds: (1) That the charges preferred against petitioners on which they are being tried by military commission appointed by the order of the President of July 2, 1942, allege an offense or offenses which the President is authorized to order tried before a military commission. (2) That the military commission was lawfully constituted. (3) That petitioners are held in lawful custody for trial before the military commission, and have not shown cause for being discharged by writ of habeas corpus. The motions for leave to file petitions for writs of habeas corpus are denied. The orders of the District Court are affirmed. The mandates are directed to issue forthwith.”

Learn more: Michael Dobbs, Saboteurs: The Nazi Raid on America (2004)

And more: Louis Fisher, Nazi Saboteurs on Trial: A Military Tribunal and American Law (2003)

Hear one of Chief Justice Stone’s clerks discuss the Quirin case: http://www.youtube.com/watch?v=E6a0OZj_G3Q

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