EX PARTE QUIRIN ET
AL.; n1 UNITED STATES EX REL. QUIRIN ET AL. v. COX, PROVOST MARSHAL n2
n1 No. , Original, Ex parte Richard Quirin; No.
, Original, Ex parte Herbert Hans Haupt; No.
, Original, Ex parte Edward John Kerling; No.
, Original, Ex parte Ernest Peter Burger; No.
, Original, Ex parte Heinrich Harm Heinck; No.
, Original, Ex parte Werner Thiel; and No.
, Original, Ex parte Hermann Otto Neubauer.
n2 No. 1, United States ex rel. Quirin v. Cox, Provost Marshal; No. 2, United
States ex rel. Haupt v. Cox, Provost Marshal; No. 3, United States ex rel.
Kerling v. Cox, Provost Marshal; No. 4, United States ex rel. Burger v. Cox,
Provost Marshal; No. 5, United States ex rel. Heinck v. Cox, Provost Marshal;
No. 6, United States ex rel. Thiel v. Cox, Provost Marshal; and No. 7, United
States ex rel. Neubauer v. Cox, Provost Marshal.
Nos. , Original, Nos. 1-7
SUPREME COURT OF THE UNITED STATES
317 U.S. 1; 63 S. Ct. 2; 87 L. Ed. 3; 1942 U.S. LEXIS 1119
July 29-30, 1942, Argued
July 31, 1942, Decided. Per Curiam decision filed, July 31, 1942. Full Opinion
filed, October 29, 1942.
PRIOR HISTORY:
MOTIONS FOR LEAVE TO FILE PETITIONS FOR WRITS OF HABEAS CORPUS; CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA.
The Court met in Special Term, on Wednesday, July 29, 1942, pursuant to a call
by the Chief Justice having the approval of all the Associate Justices.
The Chief Justice announced that the Court had convened in Special Term in
order that certain applications might be presented to it and argument be heard
in respect thereto.
In response to an inquiry by the Chief Justice, the Attorney General stated
that the Chief Justice's son, Major Lauson H. Stone, U. S. A., had, under
orders, assisted defense counsel before the Military Commission, in the case
relative to which the Special Term of the Court was called; but that Major
Stone had had no connection with this proceeding before this Court. Therefore,
said the Attorney General, counsel for all the respective parties in this
proceeding joined in urging the Chief Justice to participate in the
consideration and decision of the matters to be presented. Colonel Kenneth C.
Royall, of counsel for the petitioners, concurred in the statement and request
of the Attorney General.
The applications, seven in number (ante, p. 1, n. 1), first took the form of
petitions to this Court for leave to file petitions for writs of habeas corpus
to secure the release of the petitioners from the custody of Brigadier General
Albert L. Cox, U. S. A., Provost Marshal of the Military District of
Washington, who, pursuant to orders, was holding them in that District for and
during a trial before a Military Commission constituted by an Order of the
President of the United States. During the course of the argument, the
petitioners were permitted to file petitions for writs of certiorari, directed
to the United States Court of Appeals for the District of Columbia, to review,
before judgment by that Court, orders then before it by appeal by which the
District Court for the District of Columbia had denied applications for leave
to file petitions for writs of habeas corpus.
After the argument, this Court delivered a Per Curiam Opinion, disposing of the
cases (footnote, p. 18). A full opinion, which is the basis of this Report, was
filed with the Clerk of the Court on October 29, 1942, post, p. 18.
DISPOSITION: Leave to file petitions for habeas corpus in this Court
denied. Orders of District Court (47 F.Supp. 431), affirmed.
LAWYERS' EDITION HEADNOTES:
[***HN1]
HABEAS CORPUS, §113
procedure -- determining case without issuing writ. --
Headnote: [1]
While the usual procedure on an application for a writ of habeas corpus in the
Federal courts is for the court to issue the writ and on the return to hear and
dispose of the case, it may without issuing the writ consider and determine
whether the facts alleged by the petition, if proved, would warrant discharge
of the prisoner.
[***HN2]
APPEAL, §228
denial of habeas corpus -- jurisdiction to review. --
Headnote: [2]
Denial by a Federal District Court of leave to file a petition for a writ of
habeas corpus is the judicial determination of a case or controversy,
reviewable on appeal to the Circuit Court of Appeals and reviewable in the
Supreme Court of the United States by certiorari.
[***HN3]
COURTS, §86
jurisdiction to determine jurisdiction of military tribunals. --
Headnote: [3]
The Presidential Proclamation of July 2, 1942, in denying access to the courts
to persons thereby subjected to the jurisdiction of military tribunals on
charges of committing or attempting or preparing to commit sabotage, espionage,
hostile or warlike acts or violations of the law of war, does not preclude
access to the courts for determining its applicability to the particular case;
and neither the Proclamation nor the fact that persons challenging the
jurisdiction of military tribunals are aliens forecloses consideration by the
courts of their contention that the Constitution and laws of the United States
constitutionally enacted forbid their trial by a military commission.
[***HN4]
HABEAS CORPUS, §44
scope of inquiry -- question of guilt or innocence. --
Headnote: [4]
In determining whether a writ of habeas corpus should issue the court is not
concerned with any question of guilt or innocence.
[***HN5]
COURTS, §86
interference with Presidential orders. --
Headnote: [5]
Orders of the President in the declared exercise of his powers of 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.
[***HN6]
UNITED STATES, §14
powers of Congress and President -- scope. --
Headnote: [6]
Congress and the President possess no power not derived from the Constitution.
[***HN7]
UNITED STATES, §21
war powers of President. --
Headnote: [7]
The Constitution invests the President as Commander in Chief with the power to
wage war which Congress has declared, and to carry into effect all laws passed
by Congress for the conduct of war and for the government and regulation of the
armed forces, and all laws defining and punishing offenses against the law of
nations, including those which pertain to the conduct of war.
[***HN8]
WAR, §28
law of war -- what included. --
Headnote: [8]
The law of war includes that part of the law of nations which prescribes for
the conduct of war the status, rights and duties of enemy nations and of enemy
individuals.
[***HN9]
STATUTES, §18
definiteness -- act making offenses against law of war triable by military
tribunals. --
Headnote: [9]
The Act of Congress in providing for the trial before military tribunals of
offenses against the law of war is sufficiently definite, although Congress has
not undertaken to codify or mark the precise boundaries of the law of war or to
enumerate or define all the acts which that law condemns.
[***HN10]
WAR, §7
unlawful belligerents -- saboteurs. --
Headnote: [10]
Those who in time of war pass surreptitiously from enemy territory into that of
the United States, discarding their uniforms upon entry for the commission of
hostile acts involving destruction of life or property, have the status of
unlawful combatants punishable as such by military commission.
[***HN11]
WAR, §28
offense of unlawful belligerency -- sufficiency of charge of. --
Headnote: [11]
The offense of unlawful belligerency, which under the 15th Article of War is
triable by military commission, is sufficiently charged by a specification
which states that the persons charged, being enemies of the United States and
acting for a named belligerent enemy nation, secretly and covertly passed in
civilian dress, contrary to the law of war, through the military and naval
lines and defenses of the United States and went behind such lines contrary to
the law of war, in civilian dress, for the purpose of committing hostile acts,
and, in particular, to destroy certain war industries, war utilities and war
materials within the United States, although they are not alleged to have borne
conventional weapons and it is not alleged that their proposed hostile acts
necessarily contemplated collision with the armed forces of the United States.
[***HN12]
WAR, §7
unlawful belligerents -- who are. --
Headnote: [12]
Agents of enemy armies who enter the United States armed with explosives
intended for the destruction of war industries and supplies are not any the
less belligerent enemies than are agents similarly entering for the purpose of
destroying fortified places or the armed forces of the United States.
[***HN13]
CITIZENSHIP, §2
WAR, §30
offense of unlawful belligerency -- citizen's right to trial in civil courts.
--
Headnote: [13]
United States citizenship of an enemy belligerent does not give him the right
to be tried in the civil courts for the offense of unlawful belligerency in
violation of the law of war.
[***HN14]
WAR, §28
offense of unlawful belligerency -- when complete. --
Headnote: [14]
The offense of unlawful belligerency in violation of the law of war is complete
when one having the status of an enemy belligerent enters or remains, with
hostile purpose, upon the territory of the United States in time of war without
uniform or other appropriate means of identification, although he has not
actually committed or attempted to commit any act of depredation or entered the
theater or zone of active military operations.
[***HN15]
WAR, §28
offense of unlawful belligerency as distinct from treason. --
Headnote: [15]
The offense of entering or remaining with hostile purpose upon the territory of
the United States in time of war without uniform or other appropriate means of
identification is, even when committed by a citizen, distinct from the crime of
treason defined in Article III, 3 of the Constitution as consisting in levying
war against the United States or in adhering to their enemies, giving them aid
and comfort, since the absence of uniform essential to the one is irrelevant to
the other.
[***HN16]
INDICTMENT, §8
JURY, §17 1/2
offense against law of war -- right to presentment by grand jury and jury
trial. --
Headnote: [16]
Constitutional provisions for presentment by a grand jury and for trial by jury
do not limit the power of Congress to make offenses against the law of war
triable by military tribunals or extend the right to demand a jury to trials by
a military commission.
[***HN17]
JURY, §1
constitutional provision for trial by -- scope. --
Headnote: [17]
The purpose and effect of Article III, 2 of the Constitution, providing that
the trial of all crimes except in cases of impeachment shall be by jury, is not
to enlarge the common-law right to a jury trial, but to preserve unimpaired
trial by jury in all those cases in which it had been recognized by the common
law and in all cases of a like nature as they might arise in the future.
[***HN18]
JURY, §1
constitutional right to trial by -- effect of Fifth and Sixth Amendments. --
Headnote: [18]
The Fifth and Sixth Amendments, while guaranteeing the continuance of certain
incidents of trial by jury which Article III, 2 had left unmentioned, did not
enlarge the right to jury trial as it had been established by that Article.
[***HN19]
INDICTMENT, §8
JURY, §1
effect of exception made by Fifth and Sixth Amendments. --
Headnote: [19]
The exception of "cases arising in the land or naval forces" from the
operation of the provision of the Fifth Amendment that no person shall be held
to answer for a capital or otherwise infamous crime unless on a presentment of
a grand jury, and of the provision of the Sixth Amendment that in all criminal
prosecutions the accused shall enjoy the right to trial by an impartial jury, does
not by implication extend the constitutional guaranty of such rights to all
other cases, no exception being necessary to exclude from the operation of
these provisions cases never deemed within their terms.
[***HN20]
CONSTITUTIONAL LAW, §15
contemporaneous construction of Constitution -- force. --
Headnote: [20]
Contemporary construction of a constitutional provision which has been followed
since the founding of our government is entitled to the greatest respect.
[***HN21]
Former decision explained and distinguished. --
Headnote: [21]
Ex parte Milligan, 4 Wall 2, 18 L Ed. 281, explained and distinguished.
[***HN22]
HABEAS CORPUS, §8
futility of writ as ground for refusal. --
Headnote: [22]
Where a petitioner for habeas corpus is found to be lawfully detained on one
charge, the question whether his detention on other charges is illegal becomes
immaterial.
[***HN23]
WAR, §30
procedure of military commission -- validity of Presidential order prescribing.
--
Headnote: [23]
No such conflict exists between the Articles of War and the Presidential order
of July 2, 1942, prescribing the procedure on the trial by a military
commission thereby appointed of persons charged with offenses against the law
of war, and for review of the record of the trial and of any judgment or
sentence of the commission, as renders unlawful their trial thereunder and
their detention for trial.
SYLLABUS: 1. A federal court may refuse to issue a writ of habeas corpus
where the facts alleged in the petition, if proved, would not warrant discharge
of the prisoner. P. 24.
2. Presentation to the District Court of the United States for the District of
Columbia of a petition for habeas corpus was the institution of a suit; and
denial by that court of leave to file the petition was a judicial determination
of a case or controversy reviewable by appeal to the U.S. Court of Appeals for
the District of Columbia and in this Court by certiorari. P. 24.
3. The President's Proclamation of July 2, 1942, declaring that all persons who
are citizens or subjects of, or who act under the direction of, any nation at
war with the United States, and who during time of war enter the United States
through coastal or boundary defenses, and are charged with committing or
attempting to commit sabotage, espionage, hostile acts, or violations of the
law of war, "shall be subject to the law of war and to the jurisdiction of
military tribunals," does not bar accused persons from access to the civil
courts for the purpose of determining the applicability of the Proclamation to
the particular case; nor does the Proclamation, which in terms denied to such
persons access to the courts, nor the enemy alienage of the accused, foreclose
consideration by the civil courts of the contention that the Constitution and
laws of the United States forbid their trial by military commission. P. 24.
4. In time of war between the United States and Germany, petitioners, wearing
German military uniforms and carrying explosives, fuses, and incendiary and
time devices, were landed from German submarines in the hours of darkness, at
places on the Eastern seaboard of the United States. Thereupon they buried the
uniforms and supplies, and proceeded, in civilian dress, to various places 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. They also had been paid by the
German Government during their course of training at a sabotage school, and had
with them, when arrested, substantial amounts of United States currency, which
had been handed to them by an officer of the German High Command, who had instructed
them to wear their German uniforms while landing in the United States.
Specification 1 of the charges on which they were placed on trial before a
military commission charged that they, "being enemies of the United States
and acting for . . . the German Reich, a belligerent enemy nation, secretly and
covertly passed, in civilian dress, contrary to the law of war, through the
military and naval lines and defenses of the United States . . . and went
behind such lines, contrary to the law of war, in civilian dress . . . for the
purpose of committing . . . hostile acts, and, in particular, to destroy
certain war industries, war utilities and war materials within the United
States." Held:
(1) That the specification sufficiently charged an offense against the law of
war which the President was authorized to order tried by a military commission;
notwithstanding the fact that, ever since their arrest, the courts in the
jurisdictions where they entered the country and where they were arrested and
held for trial were open and functioning normally. Ex parte Milligan, 4
Wall. 2, distinguished. Pp. 21, 23, 36, 48.
(2) The President's Order of July 2, 1942, so far as it lays down the procedure
to be followed on the trial before the Commission and on the review of its findings
and sentence, and the procedure in fact followed by the Commission, were not in
conflict with Articles of War 38, 43, 46, 50 1/2 and 70. P. 46.
(3) The petitioners were in lawful custody for trial by a military commission;
and, upon petitions for writs of habeas corpus, did not show cause for their
discharge. P. 47.
5. Articles 15, 38 and 46 of the Articles of War, enacted by Congress,
recognize the "military commission" as an appropriate tribunal for
the trial and punishment of offenses against the law of war not ordinarily
tried by courts-martial. And by the Articles of War, especially Article 15,
Congress has explicitly provided, so far as it may constitutionally do so, that
military tribunals shall have jurisdiction to try offenses against the law of
war in appropriate cases. Pp. 26-28.
6. Congress, in addition to making rules for the government of our Armed
Forces, by the Articles of War has exercised its authority under Art. I, § 8,
cl. 10 of the Constitution to define and punish offenses against the law of
nations, of which the law of war is a part, by sanctioning, within
constitutional limitations, the jurisdiction of military commissions to try
persons for offenses which, according to the rules and precepts of the law of
nations, and more particularly the law of war, are cognizable by such
tribunals. And by Article of War 15, Congress has incorporated by reference, as
within the jurisdiction of military commissions, all offenses which are defined
as such by the law of war and which may constitutionally be included within
that jurisdiction. Pp. 28, 30.
7. This Court has always recognized and applied the law of war as including
that part of the law of nations which prescribes, for the conduct of war, the
status, rights and duties of enemy nations as well as of enemy individuals. P.
27.
8. The offense charged in this case was an offense against the law of war, the
trial of which by military commission had been authorized by Congress, and
which the Constitution does not require to be tried by jury. Ex parte
Milligan, 4 Wall. 2, distinguished. P. 45.
9. By the law of war, lawful combatants are subject to capture and detention as
prisoners of war; unlawful combatants, in addition, are subject to trial and
punishment by military tribunals for acts which render their belligerency
unlawful. P. 30.
10. It has long been accepted practice by our military authorities to treat
those who, during time of war, pass surreptitiously from enemy territory into
our own, discarding their uniforms upon entry, for the commission of hostile
acts involving destruction of life or property, as unlawful combatants
punishable as such by military commission. This practice, accepted and followed
by other governments, must be regarded as a rule or principle of the law of war
recognized by this Government by its enactment of the Fifteenth Article of War.
P. 35.
11. Citizens of the United States who associate themselves with the military
arm of an enemy government, and with its aid, guidance and direction enter this
country bent on hostile acts, are enemy belligerents within the meaning of the
Hague Convention and the law of war. P. 37.
12. Even when committed by a citizen, the offense here charged is distinct from
the crime of treason defined in Article III, § 3 of the Constitution, since the
absence of uniform essential to one is irrelevant to the other. P. 38.
13. Article III, § 2, and the Fifth and Sixth Amendments of the Constitution
did not extend the right to demand a jury to trials by military commission or
require that offenses against the law of war, not triable by jury at common
law, be tried only in civil courts. P. 38.
14. Section 2 of the Act of Congress of April 10, 1806, derived from the
Resolution of the Continental Congress of August 21, 1776, and which imposed
the death penalty on alien spies "according to the law and usage of
nations, by sentence of a general court martial," was a contemporary
construction of Article III, § 2 of the Constitution and of the Fifth and Sixth
Amendments, as not foreclosing trial by military tribunals, without a jury, for
offenses against the law of war committed by enemies not in or associated with
our Armed Forces. It is a construction which has been followed since the
founding of our government, and is now continued in the 82nd Article of War.
Such a construction is entitled to great respect. P. 41.
15. Since violation of the law of war is adequately alleged in this case, the
Court finds no occasion to consider the validity of other specifications based
on the 81st and 82nd Articles of War, or to construe those articles or decide
upon their constitutionality as so construed. P. 46.
COUNSEL: Colonel Kenneth C. Royall and Colonel Cassius M. Dowell had
been assigned as defense counsel by the President in his Order appointing the
Military Commission. Colonel Royall argued the case and Colonel Dowell was with
him on the brief.
Enemy aliens may resort to habeas corpus. Ex parte Milligan, 4 Wall. 2, at pp.
115-121; Kaufman v. Eisenberg, 32 N. Y. S. 2d 450; Ex parte Orozco, 201 F. 106;
Ex parte Risse, 257 F. 102; 55 Harvard L. Rev. 1058; 31 Ops. Atty. Gen. 361.
50 U. S. C. § 21 relates only to internment and does not authorize a
proclamation denying to alien enemies the right to apply for writ of habeas
corpus.
The 82nd Article of War, which provides for trial and punishment of spies by
courts-martial or by military commission, must be construed as applying only to
offenses committed in connection with actual military operations, or on or near
military fortifications, encampments, or installations.
Mere proof that persons in uniform landed on the American coast from a
submarine, or otherwise, does not supply any of the elements of spying. None of
the petitioners committed any acts on, near, or in connection with any
fortifications, posts, quarters, or encampments of the Army; or on, near, or in
connection with any other military installations; or at any location within the
zone of operations. 2 Wheaton, Int. L., 6th Ed., 766; 2 Oppenheim, Int. L.,
1905 Ed., 161; Halleck, Int. L., 3d Ed., 573. In the absence of evidence of any
acts within this zone, there is no authority for a military commission under
Article of War 82.
That the acts alleged to have been committed by the petitioners in violation of
the 81st Article were not in the zone of military operations would also
preclude the jurisdiction of a military commission to try this offense. See 18
U. S. C. § 1; 50 U. S. C. §§ 31-42, 101-106. The petitioners were arrested by
the civil authorities, waived arraignment before a civil court, and also waived
removal to another federal judicial district. The civil courts thereby acquired
jurisdiction; and there was no authority for the military authorities to oust
these courts of this jurisdiction.
The Rules of Land Warfare describe no such offense as that set forth in the
specifications of the first charge. These Rules were prepared in 1940 under the
direction of the Judge Advocate General, and purport to include all offenses
against the law of war.
The so-called law of war is a species of international law analogous to common
law. There is no common law crime against the United States.
The first charge sets out no more than the offenses of sabotage and espionage,
which are specifically covered by 50 U. S. C., §§ 31-42, 101-106, and which are
triable by the civil courts.
The charge of conspiracy can not stand if the other charges fall. Furthermore,
18 U. S. C. 88 deals expressly with the offense of conspiracy, and this charge
is not triable by a military commission.
The conduct of the petitioners was nothing more than preparation to commit the
crime of sabotage. The objects of sabotage had never been specifically selected
and the plan did not contemplate any act of sabotage within a period of three
months. These facts are not even sufficient to constitute an attempt to commit
sabotage.
The civil courts were functioning both in the localities in which the offenses
were charged to have been committed and in the District of Columbia where the
alleged offenses were being tried. In these localities there was no martial law
and no other circumstances which would justify action by a military tribunal.
The only way in which the petitioners as a practical matter could raise the
jurisdictional question was by petition for writ of habeas corpus.
The military commission had no jurisdiction over petitioners. Article of War 2
defines the persons who are subject to military law, and includes members of
the armed forces and other designated persons. Military courts-martial and
other military tribunals have no jurisdiction to try any other person for
offenses in violation of the Articles of War, except in the cases of Articles
81 and 82. The same is true of any alleged violations of the law of war. Ex
parte Milligan, supra; 31 Ops. Atty. Gen. 356.
Civil persons who commit acts in other localities than the zone of active
military operations are triable only in the civil courts and under the criminal
statutes. While it is true that the territory along the coast was patrolled by
the Coast Guard, the patrol was unarmed. It would be a strained use of language
to say that this patrol made the beach a military line or part of the zone of
active operations.
Nor is the situation changed by the fact that on the Long Island beach, some
distance away, was located a Signal Corps platoon engaged in operating a radio
locator station. The evidence shows that this platoon did not patrol the beach
and was not engaged in any military offensive or defensive operation at the
time the petitioners landed. The whole United States is divided into defense
areas or sectors and the orders therefor are substantially similar to those
providing for the southern and eastern defense sectors. If the prosecution were
correct in its contention that the issuance of orders for these sectors creates
a zone of active military operations, then the entire United States is a zone
of active military operations, and persons located therein are subject to the
jurisdiction of military tribunals. The Florida and Long Island seacoasts were
not and are not in any true sense zones of active military operations, but are
instead parts of the Zone of the Interior as defined in the Field Service
Regulations.
Martial law is a matter of fact and not a matter of proclamation; and a
proclamation assuming to declare martial law is invalid unless the facts
themselves support it. See Sterling v. Constantin, 287 U.S. 378.
The President's Order and Proclamation did not create a state of martial law in
the entire eastern part of the United States. In view of the facts, there was
no adequate reason, either of military necessity or otherwise, for depriving
any persons in that area of the benefit of constitutional provisions
guaranteeing an ordinary and proper trial before a civil court. Ex parte
Milligan, supra.
The President had no authority, in absence of statute, to issue the
Proclamation. In England, the practice has been to obtain authority of
Parliament for similar action. 4 and 5 Geo. V, c. 29; 5 and 6 Geo. V, c. 8; 10
and 11 Geo. V, c. 55; 2 and 3 Geo. VI, (1939) c. 62. Congress alone can suspend
the writ of habeas corpus, and then only in cases of rebellion or invasion.
Const., Art. I, § 9, cl. 2; Ex parte Merryman, 17 Fed. Cas. 114; Ex parte
Bollman, 4 Cranch 101; McCall v. McDowell, Fed. Cas. No. 8673; Ex parte
Benedict, 3 Fed. Cas. No. 1292; Willoughby, Const. L., § 1057.
The Proclamation was issued after the commission of the acts which are charged
as crimes and is ex post facto. Congress itself could not have passed valid
legislation increasing the penalty for acts already committed. Const., Art. I,
§ 9, cl. 3; Thompson v. Utah, 170 U.S. 343; Burgess v. Salmon, 97 U.S. 384.
The Proclamation is violative of the Fifth and Sixth Amendments, of Art. III, §
2, cl. 3, and of Art. I, § 9, cl. 2, of the Constitution.
The Order is invalid because it violates express provisions of Article of War
38 respecting rules of evidence; and is inconsistent with provisions of Article
43 requiring concurrence of three-fourths of the Commission's members for
conviction or sentence.
Article 70 requires a preliminary hearing like one before a committing
magistrate, with liberty of the accused to cross-examine. This is ignored by
the Order.
Whereas Article 50 1/2 requires action by the Board of Review and the
recommendation of the Judge Advocate General before the case is submitted to
the President, the Order requires that the Commission transmit the record of
the trial, including any judgment or sentence, directly to the President for
his action thereon.
The Order has made it impossible to comply with the statutory provisions, by
directing the Judge Advocate General (and the Attorney General) to conduct the
prosecution, thereby disqualifying the Judge Advocate General and his
subordinates from acting as a reviewing authority. The proceedings disclose
that the Judge Advocate General has in fact assisted in the conduct of the
prosecution.
This is a material violation of the statutory rights afforded accused persons
by the Articles of War. The provisions of Articles 46 and 50 1/2 are the
methods of appeal by a person tried before a military commission. The Order
deprives them of this method of appeal.
A cardinal purpose of Article 38 was to provide a procedure for military
commissions, with the proviso that nothing in the procedure shall be "contrary
to or inconsistent with" the Articles of War.
The President had no authority to delegate the rule-making power under Art. 38
to the Commission. In violation of Articles 38 and 18 the petitioners were
denied the right to challenge a member of the Commission peremptorily.
Confessions of the defendants were improperly admitted against each other.
If it be suggested that these are matters which do not affect the jurisdiction
of the Commission or the validity of the proceedings, but are merely questions which
may be raised on appeal or review, the answer is that the Order deprived the
petitioners of such appeal or review.
Citing Ex parte Milligan, 4 Wall. 2; Sterling v. Constantin, 287 U.S. 378;
Caldwell v. Parker, 252 U.S. 376; Kahn v. Anderson, 255 U.S. 1; Home Building
& Loan Assn. v. Blaisdell, 290 U.S. 398; Carter v. Carter Coal Co., 298
U.S. 330; 55 Harvard L. Rev. 1295; 31 Ops. A. G. 363.
Attorney General Biddle, with whom Judge Advocate General Myron C. Cramer,
Assistant Solicitor General Cox, and Col. Erwin M. Treusch were on the brief,
for respondent.
Enemies who invade the country in time of war have no privilege to question
their detention by habeas corpus. Halsbury's Laws of England, 2d Ed., Vol. IX,
p. 701, par. 1200; p. 710, par. 1212; Blackstone, 21 Ed., Vol. 1, c. 10, p.
372; Sylvester's Case, 7 Mod. 150 (1703); Rex v. Knockaloe Camp Commandant, 87
L. J. K. B. N. S. 43 (1917); Rex v. Schiever, 2 Burr. 765 (1759); Furly v.
Newnham, 2 Doug. K. B. 419 (1780); Three Spanish Sailors, 2 W. B. 1324 (1779);
Rex v. Superintendent of Vine Street Police Station, [1916] 1 K. B. 268;
Schaffenius v. Goldberg, [1916] 1 K. B. 284; Rules of Land Warfare, pars. 9,
70, 351, 352, 356.
If prisoners of war are denied the privilege of the writ of habeas corpus, it
is inescapable that petitioners are not entitled to it. By removal of their
uniforms before their capture, they lost the possible advantages of being
prisoners of war. Surely, they did not thus acquire a privilege even prisoners
of war do not have.
Whatever privilege may be accorded to such enemies is accorded by sufferance,
and may be taken away by the President. Alien enemies -- even those lawfully
resident within the country -- have no privilege of habeas corpus to inquire
into the cause of their detention as dangerous persons. Ex parte Graber, 247 F.
882; Minotto v. Bradley, 252 F. 600. See also Ex parte Weber, [1916] 1 K. B.
280, affirmed [1916] 1 A. C. 421; Rex v. Superintendent of Vine Street Police
Station, [1916] 1 K. B. 268; Rex v. Knockaloe Camp Commandant, 87 L. J. K. B.
N. S. 43; Re Chamryk, 25 Man. L. Rep. 50; Re Beranek, 33 Ont. L. Rep. 139; Re
Gottesman, 41 Ont. L. Rep. 547; Gusetu v. Date, 17 Quebec Pr. 95; Act of July
6, 1798, 50 U. S. C. § 21; De Lacey v. United States, 249 F. 625.
The fact is that ordinary constitutional doctrines do not impede the Federal
Government in its dealings with enemies. Brown v. United States, 8 Cranch 110,
121-123; Miller v. United States, 11 Wall. 268; Juragua Iron Co. v. United
States, 212 U.S. 297; De Lacey v. United States, 249 F. 625.
The President's power over enemies who enter this country in time of war, as
armed invaders intending to commit hostile acts, must be absolute.
In his Proclamation, the President took the action he deemed necessary to deal
with persons he and the armed forces under his command reasonably believed to
be enemy invaders. He declared that all such persons should be subject to the
law of war and triable by military tribunals. He removed whatever privilege
such persons might otherwise have had to seek any remedy or maintain any
proceeding in the courts of the United States.
These acts were clearly within his power as Commander in Chief and Chief
Executive, and were lawful acts of the sovereign -- the Government of the
United States -- in time of war.
The prisoners are enemies who fall squarely within the terms of the President's
proclamation. Cf. Trading with the Enemy Act of 1917, §§ 2, 7 (b).
To whatever extent the President has power to bar enemies from seeking writs of
habeas corpus, he clearly has power to define "enemy" as including a
class as broad as that described in the Trading with the Enemy Act.
Even if it be assumed that Burger and Haupt are citizens of the United States,
this does not change their status as "enemies" of the United States.
Hall, Int. L. (1909) 490-497; 2 Oppenheim, Int. L. (1940) 216-218. This rule
applies to all persons living in enemy territory, even if they are technically
United States citizens. Miller v. United States, 11 Wall. 268; Juragua Iron Co.
v. United States, 212 U.S. 297, 308. The return of Burger and Haupt to the
United States can not by any possibility be construed as an attempt to divest
themselves of their enemy character by reassuming their duties as citizens.
The offenses charged against these prisoners are within the jurisdiction of
this military commission. Articles of War 81 and 82 (10 U. S. C., §§ 1553-4).
The law of war, like civil law, has a great lex non scripta, its own common
law. This "common law of war" ( Ex parte Vallandigham, 1 Wall. 243,
249) is a centuries-old body of largely unwritten rules and principles of
international law which governs the behavior of both soldiers and civilians
during time of war. Winthrop, Military Law and Precedents (1920), 17, 41, 42,
773 ff.
The law of war has always been applied in this country. The offense for which
Major Andre was convicted -- passing through our lines in civilian dress, with
hostile purpose -- is one of the most dangerous offenses known to the law of
war. The other offenses here charged -- appearing behind the lines in civilian
guise, spying, relieving the enemy, and conspiracy -- are equally serious and
also demand severe punishment. See Digest of Opinions of Judge Advocate
General, Howland (1912), pp. 1070-1071. Cf. Instruction for the Government of
Armies of the United States in the Field (G. O. 100, A. G. O. 1863) § I, par.
13; Davis, Military Law of the United States (1913), p. 310; Rules of Land
Warfare, §§ 348, 351, 352; Article of War 15.
The definition of lawful belligerents appearing in the Rules of Land Warfare
(Rule 9) was adopted by the signatories to the Hague Convention in Article I,
Annex to Hague Convention No. IV of Oct. 18, 1907, Treaty Series No. 539, and
was ratified by the Senate of the United States. 36 Stat. 2295. Our Government
has thus recognized the existence of a class of unlawful belligerents. These
unlawful belligerents, under Article of War 15, are punishable under the common
law of war. See text writers, supra; Ex parte Vallandigham, 1 Wall. 243, 249.
Military commissions in the United States derive their authority from the
Constitution as well as statutes, military usage, and the common law of war.
Const., Art. I; Art. II, § 2 (1). In Congress and the President together is
lodged the power to wage war successfully. Home Building & Loan Assn. v.
Blaisdell, 290 U.S. 398, 426.
Military commissions have been acknowledged by Congressional statutes which
have recognized them as courts of military law. Articles of War 15, 38, 81, 82;
10 U. S. C. §§ 1486, 1509, 1553, 1554. Their authority has also been recognized
in presidential proclamations and orders, rulings of the courts, and opinions
of the Attorneys General.
The offenses charged here are unquestionably within the jurisdiction of
military commissions. The prisoners are charged with violating Articles of War
81 and 82 (10 U. S. C., §§ 1553-4) which specifically provide for trial by
military commission. They are also charged with violating the common law of war
in crossing our military lines and appearing behind our lines in civilian
dress, with hostile purpose, and with conspiring to commit all the above
violations, which in itself constitutes an additional violation of the law of
war. The jurisdiction of military commissions over these offenses under the law
of war (in addition to the specific offenses codified in the Articles of War)
is expressly recognized by Article of War 15 (10 U. S. C. § 1486).
The military commission has jurisdiction over the persons of these prisoners.
Ex parte Milligan, 4 Wall. 2, 123, 138-139. The offenses charged here arise in
the land or naval forces. The law of war embraces citizens as well as aliens
(enemy or not); and civilians as well as soldiers are all within their scope.
Indeed it was for the very purpose of trying civilians for war crimes that
military commissions first came into use. Winthrop, Military Law and Precedents
(1920) 831-841.
This broad comprehension of persons is well within the limits of the excepting
clause of the Fifth Amendment. That clause has been almost universally
construed to include civilians. Wiener, Manual of Martial Law (1940), 137;
Morgan, Court-Martial Jurisdiction over Nonmilitary Persons under the Articles
of War, 4 Minn. L. Rev. 79, 107; Winthrop, Military Law and Precedents (1920
ed.) 48, 767; Fletcher, The Civilian and the War Power, 2 Minn. L. Rev. 110,
126; 16 Op. Atty. Gen. 292; Ex parte Wildman, 29 Fed. Cas. 1232. Such
construction is founded in common sense: of all hostile acts, those by
civilians are most dangerous and should be punished most severely.
By the law of war, war crimes can be committed anywhere "within the lines
of a belligerent." Oppenheim's Int. L. (Lauterpacht's 6th ed. 1940) 457.
Having violated the law of war in an area where it obviously applies, offenders
are subject to trial by military tribunals wherever they may be apprehended.
Congress may grant jurisdiction to try civilians for offenses which "occur
in the theatre of war, in the theatre of operations, or in any place over which
the military forces have actual control and jurisdiction." Cf. Morgan,
supra, at 107; Wiener, supra, at 137. Neither the Bill of Rights nor Ex parte
Milligan grants to such persons constitutional guarantees which the Fifth
Amendment expressly denies to our own soldiers. Cf. 2 Warren, The Supreme Court
in United States History (1937) 418; Corwin, The President: Office and Powers
(2d ed. 1941) 165; United States v. McDonald, 265 F. 754. The test of whether
or not the civil courts are open to punish civil crimes is too unrealistic a
test to be applied blindly to all exercises of military jurisdiction.
The judgment of the President as to what constitutes necessity for trial by
military tribunal should not lightly be disregarded. Prize Cases, 2 Black 635.
The English courts have not only long since rejected the doctrine of Ex parte
Milligan, which they once accepted, but also have recently sustained a wide
discretion granted to the Executive for the detention of persons suspected of
hostile associations. Liversidge v. Anderson, [1942] 1 A. C. 206; Greene v.
Secretary of State for Home Affairs, [1942] 1 A. C. 284.
Courts do not inquire into the Executive's determination on matters of the type
here involved. Martin v. Mott, 12 Wheat. 19. Cf. United States v. George S.
Bush & Co., 310 U.S. 371; United States v. Curtiss-Wright Export Corp., 299
U.S. 304, 320; Dakota Central Tel. Co. v. South Dakota, 250 U.S. 163. Even if
it be assumed that the President's nomination of a military commission to try
war criminals, as specified by Congress, must be tested by the "actual and
present necessity" criterion of the majority opinion in the Milligan case,
this Court will not review the President's judgment save in a case of grave and
obvious abuse. Moyer v. Peabody, 212 U.S. 78; Sterling v. Constantin, 287 U.S.
378.
The Commission was legally convened and constituted. Kurtz v. Moffitt, 115 U.S.
487, 500; Keyes v. United States, 109 U.S. 336.
The procedure and regulations prescribed by the President are proper. Article
of War 43, requiring unanimity for a death sentence, refers to courts-martial.
It has no application to charges referred to a military commission. The
President's order did not make improper provision for review, Articles of War
46, 48, 50 1/2 and 51 considered. There was no improper delegation of
rule-making power.
The doctrine of unconstitutional delegation of powers relates only to the
improper transfer of powers from one of the three branches of the government to
another. It has nothing to do with delegations by the Chief Executive to his
military subordinates within the executive branch. Military courts "form
no part of the judicial system of the United States." Kurtz v. Moffitt,
115 U.S. 487, 500.
Objections to the actions of the Commission on a variety of grounds, ranging
from its refusal to permit peremptory challenges to its rulings on the
admissibility and sufficiency of evidence, are not cognizable by this Court.
The writ of habeas corpus can only be used to question the jurisdiction of a
military tribunal. It cannot be converted into a device for civil court review.
JUDGES:
Stone, Roberts, Black, Reed, Frankfurter, Douglas, Byrnes, Jackson; Murphy took
no part in the consideration or decision of these cases.
OPINIONBY: STONE
OPINION: [*18] [**6] [***7] MR.
CHIEF JUSTICE STONE delivered the opinion of the Court.
These cases are brought here by petitioners' several applications for leave to
file petitions for habeas corpus in this Court, and by their petitions for
certiorari to review orders of the District Court for the District of Columbia,
which denied their applications for leave to file petitions for habeas corpus
in that court.
The question for decision is whether the detention of petitioners by respondent
for trial by Military Commission, appointed by Order of the President of July
2, 1942, [*19] on charges preferred against them purporting to set
out their violations of the law of war and of the Articles of War, is in
conformity to the laws and Constitution of the United States.
After denial of their applications by the District Court, 47 F.Supp. 431,
petitioners asked leave to file petitions for habeas corpus in this Court. In
view of the public importance of the questions raised by their petitions and of
the duty which rests on the courts, in time of war as well as in time of peace,
to preserve unimpaired the constitutional safeguards of civil liberty, and
because in our opinion the public interest required that we consider and decide
those [**7] questions without any avoidable delay, we directed that
petitioners' applications be set down for full oral argument at a special term
of this Court, convened on July 29, 1942. The applications for leave to file
the petitions were presented in open court on that day and were heard on the
petitions, the answers to them of respondent, a stipulation of facts by
counsel, and the record of the testimony given before the Commission.
While the argument was proceeding before us, petitioners perfected their
appeals from the orders of the District Court to the United States Court of
Appeals for the District of Columbia and thereupon filed with this
[*20] Court petitions for certiorari to the Court of Appeals before
judgment, pursuant to § 240 (a) of the Judicial Code, 28 U. S. C. § 347 (a). We
granted certiorari before judgment for the reasons which moved us to convene
the special term of Court. In accordance with the stipulation of counsel we
treat the record, briefs and arguments in the habeas corpus proceedings in this
Court as the record, briefs and arguments upon the writs of certiorari.
On July 31, 1942, after hearing argument of counsel and after full
consideration of all questions raised, this Court affirmed the orders of the
District Court and denied petitioners' applications for leave to file petitions
for habeas corpus. By per curiam opinion we announced the decision
[***8] of the Court, and that the full opinion in the causes would
be prepared and filed with the Clerk.
The following facts appear from the petitions or are stipulated. Except as
noted they are undisputed.
All the petitioners were born in Germany; all have lived in the United States.
All returned to Germany between 1933 and 1941. All except petitioner Haupt are
admittedly citizens of the German Reich, with which the United States is at
war. Haupt came to this country with his parents when he was five years old; it
is contended that he became a citizen of the United States by virtue of the
naturalization of his parents during his minority and that he has not since
lost his citizenship. The Government, however, takes the position that on
attaining his majority he elected to maintain German allegiance and
citizenship, or in any case that he has by his conduct renounced or abandoned
his United States citizenship. See Perkins v. Elg, 307 U.S. 325,
334; United States ex rel. Rojak v. Marshall, 34 F.2d 219; United
States ex rel. Scimeca v. Husband, 6 F.2d 957, 958; 8 U. S. C. §
801, and compare 8 U. S. C. § 808. For reasons presently to be stated we do not
find it necessary to resolve these contentions.
[*21] After the declaration of war between the United States and
the German Reich, petitioners received training at a sabotage school near
[***9] Berlin, Germany, where they were instructed in the use of
explosives and in methods of secret writing. Thereafter petitioners, with a
German citizen, Dasch, proceeded from Germany to a seaport in Occupied France,
where petitioners Burger, Heinck and Quirin, together with Dasch, boarded a
German submarine which proceeded across the Atlantic to Amagansett Beach on
Long Island, New York. The four were there landed from the submarine in the
hours of darkness, on or about June 13, 1942, carrying with them a supply of
explosives, fuses, and incendiary and timing devices. While landing they wore
German Marine Infantry uniforms or parts of uniforms. Immediately after landing
they buried their uniforms and the other articles mentioned, and proceeded in
civilian dress to New York City.
The remaining four petitioners at the same French port boarded another German
submarine, which carried them across the Atlantic to Ponte Vedra Beach,
Florida. On or about June 17, 1942, they came ashore during the hours of
darkness, wearing caps of the German Marine Infantry and carrying with them a
supply of explosives, fuses, and incendiary and timing devices. They
immediately buried their caps and the other articles mentioned, and proceeded
in civilian dress to Jacksonville, Florida, and thence to various points in the
United States. All were taken into custody in New York or Chicago by agents of
the Federal Bureau of Investigation. All had received instructions in Germany
from an [**8] 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. They also had been paid by the German Government during their
course of training at the sabotage school and had received substantial sums in
[*22] United States currency, which were in their possession when
arrested. The currency had been handed to them by an officer of the German High
Command, who had instructed them to wear their German uniforms while landing in
the United States. n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 From June 12 to June 18, 1942, Amagansett Beach, New York, and Ponte Vedra
Beach, Florida, were within the area designated as the Eastern Defense Command
of the United States Army, and subject to the provisions of a proclamation
dated May 16, 1942, issued by Lieutenant General Hugh A. Drum, United States
Army, Commanding General, Eastern Defense Command (see 7 Federal Register
3830). On the night of June 12-13, 1942, the waters around Amagansett Beach,
Long Island, were within the area comprising the Eastern Sea Frontier, pursuant
to the orders issued by Admiral Ernest J. King, Commander in Chief of the
United States Fleet and Chief of Naval Operations. On the night of June 16-17,
1942, the waters around Ponte Vedra Beach, Florida, were within the area
comprising the Gulf Sea Frontier, pursuant to similar orders.
On the night of June 12-13, 1942, members of the United States Coast Guard,
unarmed, maintained a beach patrol along the beaches surrounding Amagansett,
Long Island, under written orders mentioning the purpose of detecting landings.
On the night of June 17-18, 1942, the United States Army maintained a patrol of
the beaches surrounding and including Ponte Vedra Beach, Florida, under written
orders mentioning the purpose of detecting the landing of enemy agents from
submarines.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The President, as President and Commander in Chief of the Army and Navy, by
Order of July 2, 1942, n2 appointed a Military Commission and directed it to try
petitioners for offenses against the law of war and the Articles of War, and
prescribed regulations for the procedure on the trial and for review of the
record of the trial and of any judgment or sentence of the Commission. On the
same day, by Proclamation, n3 the President declared that "all persons who
are subjects, citizens or residents of any nation at war with the
[***10] United States or who give obedience to or act under the
direction of any such nation, [*23] and who during time of war
enter or attempt to enter the United States . . . 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."
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 7 Federal Register 5103.
n3 7 Federal Register 5101.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The Proclamation also stated in terms that all such persons were denied access
to the courts.
Pursuant to direction of the Attorney General, the Federal Bureau of
Investigation surrendered custody of petitioners to respondent, Provost Marshal
of the Military District of Washington, who was directed by the Secretary of
War to receive and keep them in custody, and who thereafter held petitioners
for trial before the Commission.
On July 3, 1942, the Judge Advocate General's Department of the Army prepared
and lodged with the Commission the following charges against petitioners,
supported by specifications:
1. Violation of the law of war.
2. Violation of Article 81 of the Articles of War, defining the offense of
relieving or attempting to relieve, or corresponding with or giving
intelligence to, the enemy.
3. Violation of Article 82, defining the offense of spying.
4. Conspiracy to commit the offenses alleged in charges 1, 2 and 3.
The Commission met on July 8, 1942, and proceeded with the trial, which continued
in progress while the causes were pending in this Court. On July 27th, before
petitioners' [**9] applications to the District Court, all the
evidence for the prosecution and the defense had been taken by the Commission
and the case had been closed except for arguments of counsel. It is conceded
that ever since petitioners' arrest the state and federal courts in Florida,
New York, and the District of Columbia, and in [*24] the states in
which each of the petitioners was arrested or detained, have been open and
functioning normally.
[***HR1] [1]
[***HR2] [2]
While it is the usual procedure on an application for a writ of habeas corpus
in the federal courts for the court to issue the writ and on the return to hear
and dispose of the case, it may without issuing the writ consider and determine
whether the facts alleged by the petition, if proved, would warrant discharge
of the prisoner. Walker v. Johnston, 312 U.S. 275, 284.
Presentation of the petition for judicial action is the institution of a suit.
Hence denial by the district court of leave to file the petitions in these
causes was the judicial determination of a case or controversy, reviewable on
appeal to the Court of Appeals and reviewable here by certiorari. See Ex
parte Milligan, 4 Wall. 2, 110-13; Betts v. Brady, 316 U.S.
455, 458-461.
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 1/2 and 70 -- and are illegal and void.
[***HR3] [3]
The Government challenges each of [***11] 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 [*25]
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.
[***HR4] [4]
[***HR5] [5]
We are not here concerned with any question of the guilt or innocence of
petitioners. n4 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 Milligan, supra, 119, 132; Tumey
v. Ohio, 273 U.S. 510, 535; Hill v. Texas, 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 As appears from the stipulation, a defense offered before the Military
Commission was that petitioners had had no intention to obey the orders given
them by the officer of the German High Command.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**10]
[***HR6] [6]
Congress and the President, like the courts, possess no power not derived from
the Constitution. But one of [*26] 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, § 8, cl. 1; "To raise
and support Armies," "To provide and maintain a Navy," Art. I, §
8, cl. 12, 13; and "To make Rules for the Government and Regulation of the
land and naval Forces," Art. I, § 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, § 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, § 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 Powers, and all
other Powers vested by this Constitution in the Government of the United
States, or in any Department or Officer thereof." Art. I, § 8, cl. 18.
The Constitution confers on the President the "executive Power," Art.
II, § 1, cl. 1, and imposes on him the duty to "take Care that the Laws be
faithfully executed." Art. II, § 3. It makes him the Commander in Chief of
the Army and Navy, Art. II, § 2, cl. 1, and empowers him to appoint and
commission officers of the United States. Art. II, § 3, cl. 1.
[***HR7] [7]
The Constitution thus invests the [***12] President, as Commander
in Chief, with the power to wage war which Congress has declared, and to carry
into effect all laws passed by Congress for the conduct of war and for the
government and regulation of the Armed Forces, and all laws defining and
punishing offenses against the law of nations, including those which pertain to
the conduct of war.
By the Articles of War, 10 U. S. C. §§ 1471-1593, Congress has provided rules
for the government of the Army. It has provided for the trial and punishment,
by courts [*27] martial, of violations of the Articles by members
of the armed forces and by specified classes of persons associated or serving
with the Army. Arts. 1, 2. But the Articles also recognize the "military
commission" appointed by military command as an appropriate tribunal for
the trial and punishment of offenses against the law of war not ordinarily
tried by court martial. See Arts. 12, 15. Articles 38 and 46 authorize the
President, with certain limitations, to prescribe the procedure for military
commissions. Articles 81 and 82 authorize trial, either by court martial or
military commission, of those charged with relieving, harboring or
corresponding with the enemy and those charged with spying. And Article 15
declares that "the provisions of these articles conferring jurisdiction
upon courts martial shall not be construed as depriving military commissions .
. . or other military tribunals of concurrent jurisdiction in respect of
offenders or offenses that by statute or by the law of war may be triable by
such military commissions . . . or other military tribunals." Article 2
includes among those persons subject to military law the personnel of our own
military establishment. But this, as Article 12 provides, does not exclude from
that class "any other person who by the law of war is subject to trial by
military tribunals" and who under Article 12 may be tried by court martial
or under Article 15 by military commission.
Similarly the Espionage Act of 1917, which authorizes trial in the district
courts of certain offenses that tend to interfere with the prosecution of war,
provides that nothing contained in the act "shall be deemed to limit the
jurisdiction of the general courts-martial, military commissions, or naval
courts-martial." 50 U. S. C. § 38.
[***HR8] [8]
From the very beginning of its history this Court has recognized and applied
the law of war as including that part of the law of nations which prescribes,
for the conduct [*28] of war, the status, rights and duties of
enemy nations as well as of enemy individuals. n5 By the Articles
[**11] 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. Congress, in addition to making rules for the government of
our Armed Forces, has thus exercised its authority to define and punish
offenses against the law of nations by sanctioning, within constitutional
[***13] limitations, the jurisdiction of military commissions to
try persons for offenses which, according to the rules and precepts of the law
of nations, and more particularly the law of war, are cognizable by such
tribunals. And the President, as Commander in Chief, by his Proclamation in
time of war has invoked that law. By his Order creating the present Commission
he has undertaken to exercise the authority conferred upon him by Congress, and
also such authority as the Constitution itself gives the Commander in Chief, to
direct the performance of those functions which may constitutionally be
performed by the military arm of the nation in time of war.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n5 Talbot v. Janson, 3 Dall. 133, 153, 159-61; Talbot v. Seeman,
1 Cranch 1, 40-41; Maley v. Shattuck, 3 Cranch 458, 488; Fitzsimmons
v. Newport Ins. Co., 4 Cranch 185, 199; The Rapid, 8 Cranch 155,
159-64; The St. Lawrence, 9 Cranch 120, 122; Thirty Hogsheads of
Sugar v. Boyle, 9 Cranch 191, 197-98; The Anne, 3 Wheat. 435,
447-48; United States v. Reading, 18 How. 1, 10; Prize Cases,
2 Black 635, 666-67, 687; The Venice, 2 Wall. 258, 274; The William
Bagaley, 5 Wall. 377; Miller v. United States, 11 Wall. 268; Coleman
v. Tennessee, 97 U.S. 509, 517; United States v. Pacific
Railroad, 120 U.S. 227, 233; Juragua Iron Co. v. United States,
212 U.S. 297.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
An important incident to the conduct of war is the adoption of measures by the
military command not only to repel and defeat the enemy, but to seize and
subject to disciplinary measures those enemies who in their attempt to thwart
or impede our military effort have violated the law [*29] of war.
It is unnecessary for present purposes to determine to what extent the
President as Commander in Chief has constitutional power to create military
commissions without the support of Congressional legislation. For here Congress
has authorized trial of offenses against the law of war before such
commissions. We are concerned only with the question whether it is within the
constitutional power of the National Government to place petitioners upon trial
before a military commission for the offenses with which they are charged. We
must therefore first inquire whether any of the acts charged is an offense
against the law of war cognizable before a military tribunal, and if so whether
the Constitution prohibits the trial. We may assume that there are acts
regarded in other countries, or by some writers on international law, as offenses
against the law of war which would not be triable by military tribunal here,
either because they are not recognized by our courts as violations of the law
of war or because they are of that class of offenses constitutionally triable
only by a jury. It was upon such grounds that the Court denied the right to
proceed by military tribunal in Ex parte Milligan, supra. But as we
shall show, these petitioners were charged with an offense against the law of
war which the Constitution does not require to be tried by jury.
[***HR9] [9]
It is no objection that Congress in providing for the trial of such offenses
has not itself undertaken to codify that branch of international law or to mark
its precise boundaries, or to enumerate or define by statute all the acts which
that law condemns. An Act of Congress punishing "the crime of piracy, as
defined by the law of nations" is an appropriate exercise of its
constitutional authority, Art. I, § 8, cl. 10, "to define and punish"
the offense, since it has adopted by reference the sufficiently precise
definition of international law. United States v. Smith, 5 Wheat.
153; see The Marianna Flora, 11 Wheat. 1, 40-41; [*30] United
States v. Brig Malek Adhel, 2 How. 210, 232; The Ambrose Light,
25 F. 408, 423-28; 18 U. S. C. § 481. n6 Similarly, by [***14] the
reference in [**12] the 15th Article of War to "offenders or
offenses that . . . by the law of war may be triable by such military
commissions," Congress has incorporated by reference, as within the
jurisdiction of military commissions, all offenses which are defined as such by
the law of war (compare Dynes v. Hoover, 20 How. 65, 82), and
which may constitutionally be included within that jurisdiction. Congress had
the choice of crystallizing in permanent form and in minute detail every
offense against the law of war, or of adopting the system of common law applied
by military tribunals so far as it should be recognized and deemed applicable
by the courts. It chose the latter course.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n6 Compare 28 U. S. C. § 41 (17), conferring on the federal courts jurisdiction
over suits brought by an alien for a tort "in violation of the laws of
nations"; 28 U. S. C. § 341, conferring upon the Supreme Court such
jurisdiction of suits against ambassadors as a court of law can have
"consistently with the law of nations"; 28 U. S. C. § 462, regulating
the issuance of habeas corpus where the prisoner claims some right, privilege
or exemption under the order of a foreign state, "the validity and effect
whereof depend upon the law of nations"; 15 U. S. C. §§ 606 (b) and 713
(b), authorizing certain loans to foreign governments, provided that "no
such loans shall be made in violation of international law as interpreted by
the Department of State."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
By universal agreement and practice, the law of war draws a distinction between
the armed forces and the peaceful populations of belligerent nations n7 and
also between [*31] 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. n8 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. See Winthrop, Military
Law, 2d ed., pp. 1196-97, 1219-21; Instructions for the Government of Armies of
the United States in the Field, approved by the President, General Order No.
100, April 24, 1863, §§ IV and V.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n7 Hague Convention No. IV of October 18, 1907, 36 Stat. 2295, Article I of the
Annex to which defines the persons to whom belligerent rights and duties
attach, was signed by 44 nations. See also Great Britain, War Office, Manual of
Military Law (1929) ch. xiv, §§ 17-19; German General Staff, Kriegsbrauch im
Landkriege (1902) ch. 1; 7 Moore, Digest of International Law, § 1109; 2 Hyde,
International Law (1922) § 653-54; 2 Oppenheim, International Law (6th ed.
1940) § 107; Bluntschli, Droit International (5th ed. tr. Lardy) §§ 531-32; 4
Calvo, Le Droit International Theorique et Pratique (5th ed. 1896) §§ 2034-35.
n8 Great Britain, War Office, Manual of Military Law, ch. xiv, §§ 445-451;
Regolamento di Servizio in Guerra, § 133, 3 Leggi e Decreti del Regno d'Italia
(1896) 3184; 7 Moore, Digest of International Law, § 1109; 2 Hyde,
International Law, §§ 654, 652; 2 Halleck, International Law (4th ed. 1908) §
4; 2 Oppenheim, International Law, § 254; Hall, International Law, §§ 127, 135;
Baty & Morgan, War, Its Conduct and Legal Results (1915) 172; Bluntschli,
Droit International, §§ 570 bis.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Such was the practice of our own military authorities before the adoption of
the Constitution, n9 and during the Mexican and [**13] Civil Wars.
n10
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n9 On September 29, 1780, Major John Andre, Adjutant-General to the British
Army, was tried by a "Board of General Officers" appointed by General
Washington, on a charge that he had come within the lines for an interview with
General Benedict Arnold and had been captured while in disguise and travelling
under an assumed name. The Board found that the facts charged were true, and
that when captured Major Andre had in his possession papers containing intelligence
for the enemy, and reported their conclusion that "Major Andre . . . ought
to be considered as a Spy from the enemy, and that agreeably to the law and
usage of nations . . . he ought to suffer death." Major Andre was hanged
on October 2, 1780. Proceedings of a Board of General Officers Respecting Major
John Andre, Sept. 29, 1780, printed at Philadelphia in 1780.
n10 During the Mexican War military commissions were created in a large number
of instances for the trial of various offenses. See General Orders cited in 2
Winthrop, Military Law (2d ed. 1896) p. 1298, note 1.
During the Civil War the military commission was extensively used for the trial
of offenses against the law of war. Among the more significant cases for
present purposes are the following:
On May 22, 1865, T. E. Hogg and others were tried by a military commission, for
"violations of the laws and usages of civilized war," the
specifications charging that the accused "being commissioned, enrolled,
enlisted or engaged" by the Confederate Government, came on board a United
States merchant steamer in the port of Panama "in the guise of peaceful
passengers" with the purpose of capturing the vessel and converting her
into a Confederate cruiser. The Commission found the accused guilty and sentenced
them to be hanged. The reviewing authority affirmed the judgments, writing an
extensive opinion on the question whether violations of the law of war were
alleged, but modified the sentences to imprisonment for life and for various
periods of years. Dept. of the Pacific, G. O. No. 52, June 27, 1865.
On January 17, 1865, John Y. Beall was tried by a military commission for
"violation of the laws of war." The opinion by the reviewing
authority reveals that Beall, holding a commission in the Confederate Navy,
came on board a merchant vessel at a Canadian port in civilian dress and, with
associates, took possession of the vessel in Lake Erie; that, also in disguise,
he unsuccessfully attempted to derail a train in New York State, and to obtain
military information. His conviction by the Commission was affirmed on the
ground that he was both a spy and a "guerrilla," and he was sentenced
to be hanged. Dept. of the East, G. O. No. 14, Feb. 14, 1865.
On January 17, 1865, Robert C. Kennedy, a Captain of the Confederate Army, who
was shown to have attempted, while in disguise, to set fire to the City of New
York, and to have been seen in disguise in various parts of New York State, was
convicted on charges of acting as a spy and violation of the law of war "in
undertaking to carry on irregular and unlawful warfare." He was sentenced
to be hanged, and the sentence was confirmed by the reviewing authority. Dept.
of the East, G. O. No. 24, March 20, 1865.
On September 19, 1865, William Murphy, "a rebel emissary in the employ of
and colleagued with rebel enemies," was convicted by a military commission
of "violation of the laws and customs of war" for coming within the
lines and burning a United States steamboat and other property. G. C. M. O. No.
107, April 18, 1866.
Soldiers and officers "now or late of the Confederate Army," were
tried and convicted by military commission for "being secretly within the
lines of the United States forces," James Hamilton, Dept. of the Ohio, G.
O. No. 153, Sept. 18, 1863; for "recruiting men within the lines,"
Daniel Davis, G. O. No. 397, Dec. 18, 1863, and William F. Corbin and T. G.
McGraw, G. O. No. 114, May 4, 1863; and for "lurking about the posts,
quarters, fortifications and encampments of the armies of the United States,"
although not "as a spy," Augustus A. Williams, Middle Dept., G. O.
No. 34, May 5, 1864. For other cases of violations of the law of war punished
by military commissions during the Civil War, see 2 Winthrop, Military Laws and
Precedents (2d ed. 1896) 1310-11.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*32] [***15] Paragraph 83 of General Order No. 100 of
April 24, 1863, directed that: "Scouts or single soldiers, if disguised in
the dress of the country, or in the uniform of the army hostile to their own,
employed in obtaining information, if found within or lurking about the lines
of the captor, are treated as spies, and suffer death." And Paragraph
[*33] 84, that "Armed prowlers, by whatever names they may be
called, or persons of the enemy's territory, who steal within the lines of the
hostile army, for the purpose of robbing, killing, or of destroying bridges,
roads, or canals, or of robbing or destroying the mail, or of cutting the
telegraph wires, are not entitled to the [**14] privileges of the
prisoner of war." n11 These and related provisions [***16]
have [*34] been continued in substance by the Rules of Land Warfare
promulgated by the War Department for the guidance of the Army. Rules of 1914,
Par. 369-77; Rules of 1940, Par. 345-57. Paragraph 357 of the 1940 Rules
provides that "All war crimes are subject to the death penalty, although a
lesser penalty may be imposed." Paragraph 8 (1940) divides the enemy
population into "armed forces" and "peaceful population,"
and Paragraph 9 names as distinguishing characteristics of lawful belligerents
that they "carry arms openly" and "have a fixed distinctive
emblem." Paragraph 348 declares that "persons who take up arms and
commit hostilities" without having the means of identification prescribed
for belligerents are punishable as "war criminals." Paragraph 351
provides that "men and bodies of men, who, without being lawful
belligerents" "nevertheless commit hostile acts of any kind" are
not entitled to the privileges of prisoners of war if captured and may be tried
by military commission and punished by death or lesser punishment. And
paragraph 352 provides that "armed prowlers . . . or persons of the enemy
territory who steal within the lines of the hostile army for the purpose of
robbing, killing, or of destroying bridges, roads, or canals, of robbing or
destroying the mail, or of cutting the telegraph wires, are not entitled to be
treated as prisoners of war." As is evident from reading these and related
Paragraphs 345-347, the specified violations are intended to be only
illustrative of the applicable principles of the common law of war, and not an
exclusive enumeration of the punishable acts recognized as such by that law.
The definition of lawful belligerents by Paragraph 9 is that adopted by Article
1, Annex to Hague Convention No. IV of October 18, 1907, to which the United
States was a signatory and which was ratified by the Senate in 1909. 36 Stat.
2295. The preamble to the Convention declares:
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n11 See also Paragraph 100: "A messenger or agent who attempts to steal
through the territory occupied by the enemy, to further, in any manner, the
interests of the enemy, if captured, is not entitled to the privileges of the
prisoner of war, and may be dealt with according to the circumstances of the
case."
Compare Paragraph 101.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*35] "Until a more complete code of the laws of war has been
issued, the High Contracting Parties deem it expedient to declare that, in
cases not included in the Regulations adopted by them, the inhabitants and the
belligerents remain under the protection and the rule of the principles of the
law of nations, as they result from the usages established among civilized
peoples, from the laws of humanity, and the dictates of the public
conscience."
Our Government, by thus defining lawful belligerents entitled to be treated as
prisoners of war, has recognized that there is a class of unlawful belligerents
not entitled to that privilege, including those who, though combatants, do not
wear "fixed and distinctive emblems." And by Article 15 of the
Articles of War Congress has made provision for their trial and punishment by
military commission, according to "the law of war."
[***HR10] [10]
By a long course of practical administrative construction by its military
authorities, our Government has likewise recognized that those who during time
of war pass surreptitiously from enemy territory into our own, discarding their
uniforms upon entry, for the commission of hostile acts involving destruction
of life or property, have the status of unlawful combatants punishable as such
by military commission. This precept of the law of war has been so recognized
in practice both here and abroad, and has so generally been accepted as valid
by authorities on international law n12 that we think it [***17]
must [**15] be regarded as [*36] a rule or principle of
the law of war recognized by this Government by its enactment of the Fifteenth
Article of War.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n12 Great Britain, War Office, Manual of Military Law (1929) § 445, lists a
large number of acts which, when committed within enemy lines by persons in
civilian dress associated with or acting under the direction of enemy armed
forces, are "war crimes." The list includes: "damage to
railways, war material, telegraph, or other means of communication, in the
interest of the enemy. . . ." Section 449 states that all "war
crimes" are punishable by death.
Authorities on International Law have regarded as war criminals such persons
who pass through the lines for the purpose of (a) destroying bridges, war
materials, communication facilities, etc.: 2 Oppenheim, International Law (6th
ed. 1940) § 255; Spaight, Air Power and War Rights (1924) 283; Spaight, War
Rights on Land (1911) 110; Phillipson, International Law and the Great War
(1915) 208; Liszt, Das Volkerrecht (12 ed. 1925), § 58 (B) 4; (b) carrying
messages secretly: Hall, International Law (8th ed. 1924) § 188; Spaight, War
Rights on Land 215; 3 Merignhac, Droit Public International (1912) 296-97;
Bluntschli, Droit International Codifie (5th ed. tr. Lardy) § 639; 4 Calvo, Le
Droit International Theorique et Pratique (5th ed. 1896) § 2119; (c) any
hostile act: 2 Winthrop, Military Law and Precedents, (2nd ed. 1896) 1224. Cf.
Lieber, Guerrilla Parties (1862), 2 Miscellaneous Writings (1881) 288.
These authorities are unanimous in stating that a soldier in uniform who
commits the acts mentioned would be entitled to treatment as a prisoner of war;
it is the absence of uniform that renders the offender liable to trial for
violation of the laws of war.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[***HR11] [11]
Specification 1 of the first charge is sufficient to charge all the petitioners
with the offense of unlawful belligerency, trial of which is within the
jurisdiction of the Commission, and the admitted facts affirmatively show that
the charge is not merely colorable or without foundation.
Specification 1 states that petitioners, "being enemies of the United
States and acting for . . . the German Reich, a belligerent enemy nation,
secretly and covertly passed, in civilian dress, contrary to the law of war,
through the military and naval lines and defenses of the United States . . .
and went behind such lines, contrary to the law of war, in civilian dress . . .
for the purpose of committing . . . hostile acts, and, in particular, to
destroy certain war industries, war utilities and war materials within the
United States."
[***HR12] [12]
This specification so plainly alleges violation of the law of war as to require
but brief discussion of petitioners' contentions. As we have seen, entry upon
our territory [*37] in time of war by enemy belligerents, including
those acting under the direction of the armed forces of the enemy, for the
purpose of destroying property used or useful in prosecuting the war, is a
hostile and warlike act. It subjects those who participate in it without
uniform to the punishment prescribed by the law of war for unlawful
belligerents. It is without significance that petitioners were not alleged to
have borne conventional weapons or that their proposed hostile acts did not
necessarily contemplate collision with the Armed Forces of the United States.
Paragraphs 351 and 352 of the Rules of Land Warfare, already referred to,
plainly contemplate that the hostile acts and purposes for which unlawful
belligerents may be punished are not limited to assaults on the Armed Forces of
the United States. Modern warfare is directed at the destruction of enemy war
supplies and the implements of their production and transportation, quite as much
as at the armed forces. Every consideration which makes the unlawful
belligerent punishable is equally applicable whether his objective is the one
or the other. The law of war cannot rightly treat those agents of enemy armies
who enter our territory, armed with explosives intended for the destruction of
war industries and supplies, as any the less belligerent enemies than are
agents similarly entering for the purpose of destroying fortified places or our
Armed Forces. By passing our boundaries for such purposes without uniform or
other emblem signifying their belligerent status, or by discarding that means
of identification after entry, such enemies become [***18] unlawful
belligerents subject to trial and punishment.
[***HR13] [13]
Citizenship in the United States of an enemy belligerent does not relieve him
from the consequences of a belligerency which is unlawful because in violation
of the law of war. Citizens who associate themselves with the military arm of
the enemy government, and with its aid, [*38] guidance and
direction enter this country bent on hostile acts, are enemy belligerents
within the meaning of the Hague Convention [**16] and the law of
war. Cf. Gates v. Goodloe, 101 U.S. 612, 615, 617-18. It is as an
enemy belligerent that petitioner Haupt is charged with entering the United
States, and unlawful belligerency is the gravamen of the offense of which he is
accused.
[***HR14] [14]
[***HR15] [15]
Nor are petitioners any the less belligerents if, as they argue, they have not
actually committed or attempted to commit any act of depredation or entered the
theatre or zone of active military operations. The argument leaves out of
account the nature of the offense which the Government charges and which the
Act of Congress, by incorporating the law of war, punishes. It is that each
petitioner, in circumstances which gave him the status of an enemy belligerent,
passed our military and naval lines and defenses or went behind those lines, in
civilian dress and with hostile purpose. The offense was complete when with
that purpose they entered -- or, having so entered, they remained upon -- our
territory in time of war without uniform or other appropriate means of
identification. For that reason, even when committed by a citizen, the offense
is distinct from the crime of treason defined in Article III, § 3 of the
Constitution, since the absence of uniform essential to one is irrelevant to
the other. Cf. Morgan v. Devine, 237 U.S. 632; Albrecht v.
United States, 273 U.S. 1, 11-12.
[***HR16] [16]
But petitioners insist that, even if the offenses with which they are charged
are offenses against the law of war, their trial is subject to the requirement
of the Fifth Amendment that no person shall be held to answer for a capital or
otherwise infamous crime unless on a presentment or indictment of a grand jury,
and that such trials by Article III, § 2, and the Sixth Amendment must be by
jury in a civil court. Before the Amendments, § 2 of Article [*39]
III, the Judiciary Article, had provided, "The Trial of all Crimes, except
in Cases of Impeachment, shall be by Jury," and had directed that
"such Trial shall be held in the State where the said Crimes shall have
been committed."
[***HR17] [17]
Presentment by a grand jury and trial by a jury of the vicinage where the crime
was committed were at the time of the adoption of the Constitution familiar
parts of the machinery for criminal trials in the civil courts. But they were
procedures unknown to military tribunals, which are not courts in the sense of
the Judiciary Article, Ex parte Vallandigham, 1 Wall. 243; In re
Vidal, 179 U.S. 126; cf. Williams v. United States, 289 U.S.
553, and which in the natural course of events are usually called upon to
function under conditions precluding resort to such procedures. As this Court
has often recognized, it was not the purpose or effect of § 2 of Article III,
read in the light of the common law, to enlarge the then existing right to a
jury trial. The object was to preserve unimpaired trial by jury in all those
cases in which it had been recognized by the common law and in all cases of a
like nature as they might arise in the future, District of Columbia v. Colts,
282 U.S. 63, but not to bring within the sweep of the guaranty those cases in
which it was [***19] then well understood that a jury trial could
not be demanded as of right.
[***HR18] [18]
The Fifth and Sixth Amendments, while guaranteeing the continuance of certain
incidents of trial by jury which Article III, § 2 had left unmentioned, did not
enlarge the right to jury trial as it had been established by that Article. Callan
v. Wilson, 127 U.S. 540, 549. Hence petty offenses triable at common law
without a jury may be tried without a jury in the federal courts,
notwithstanding Article III, § 2, and the Fifth and Sixth Amendments. Schick
v. United States, 195 U.S. 65; District of Columbia
[*40] v. Clawans, 300 U.S. 617. Trial by jury of criminal
contempts may constitutionally be dispensed with in the federal courts in those
cases in which they could be tried without a jury at common law. Ex parte
Terry, 128 U.S. 289, 302-04; Savin, Petitioner, 131 U.S. 267, 277; In
re Debs, 158 U.S. 564, 594-96; United States v. Shipp, 203
U.S. 563, 572; Blackmer v. United States, 284 U.S. 421, 440;
[**17] Nye v. United States, 313 U.S. 33, 48; see United
States v. Hudson and Goodwin, 7 Cranch 32, 34. Similarly, an action
for debt to enforce a penalty inflicted by Congress is not subject to the
constitutional restrictions upon criminal prosecutions. United States v.
Zucker, 161 U.S. 475; United States v. Regan, 232 U.S. 37,
and cases cited.
All these are instances of offenses committed against the United States, for
which a penalty is imposed, but they are not deemed to be within Article III, §
2, or the provisions of the Fifth and Sixth Amendments relating to
"crimes" and "criminal prosecutions." In the light of this
long-continued and consistent interpretation we must conclude that § 2 of
Article III and the Fifth and Sixth Amendments cannot be taken to have extended
the right to demand a jury to trials by military commission, or to have
required that offenses against the law of war not triable by jury at common law
be tried only in the civil courts.
[***HR19] [19]
The fact that "cases arising in the land or naval forces" are
excepted from the operation of the Amendments does not militate against this
conclusion. Such cases are expressly excepted from the Fifth Amendment, and are
deemed excepted by implication from the Sixth. Ex parte Milligan, supra,
123, 138-39. It is argued that the exception, which excludes from the Amendment
cases arising in the armed forces, has also by implication extended its
guaranty to all other cases; that since petitioners, not being members of the
Armed Forces of the United States, are not within the exception, the Amendment
operates to [*41] give to them the right to a jury trial. But we
think this argument misconceives both the scope of the Amendment and the
purpose of the exception.
We may assume, without deciding, that a trial prosecuted before a military
commission created by military authority is not one "arising in the land .
. . forces," when the accused is not a member of or associated with those
forces. But even so, the exception cannot be taken to affect those trials before
military commissions which are neither within the exception nor within the
provisions of Article III, § 2, whose guaranty the Amendments did not enlarge.
No exception is necessary to exclude from the operation of these provisions
cases never deemed to be within their terms. An express exception from Article
III, § 2, and from the Fifth and Sixth Amendments, of trials of petty offenses
and of criminal contempts has not been found necessary in order to preserve the
[***20] traditional practice of trying those offenses without a
jury. It is no more so in order to continue the practice of trying, before
military tribunals without a jury, offenses committed by enemy belligerents
against the law of war.
[***HR20] [20]
Section 2 of the Act of Congress of April 10, 1806, 2 Stat. 371, derived from
the Resolution of the Continental Congress of August 21, 1776, n13 imposed the
death penalty on alien spies "according to the law and usage of nations,
by sentence of a general court martial." This enactment must be regarded
as a contemporary construction of both Article III, § 2, and the Amendments as
not foreclosing trial by military tribunals, without a jury, of offenses
against the law of war committed by enemies not in or associated with our Armed
Forces. It is a construction of the Constitution which has been followed since
the founding of our Government, and is now continued in the 82nd Article of
War. Such a construction is entitled to [*42] the greatest respect.
Stuart v. Laird, 1 Cranch 299, 309; Field v. Clark,
143 U.S. 649, 691; United States v. Curtiss-Wright Corp., 299
U.S. 304, 328. It has not hitherto been challenged, and, so far as we are
advised, it has never been suggested in the very extensive literature of the
subject that an alien spy, in time of war, could not be tried by military
tribunal without a jury. n14
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n13 See Morgan, Court-Martial Jurisdiction over Non-Military Persons under the
Articles of War, 4 Minnesota L. Rev. 79, 107-09.
n14 In a number of cases during the Revolutionary War enemy spies were tried
and convicted by military tribunals: (1) Major John Andre, Sept. 29, 1780, see
note 9 supra. (2) Thomas Shanks was convicted by a "Board of
General Officers" at Valley Forge on June 3, 1778, for "being a Spy
in the Service of the Enemy," and sentenced to be hanged. 12 Writings of
Washington (Bicentennial Comm'n ed.) 14. (3) Matthias Colbhart was convicted of
"holding a Correspondence with the Enemy" and "living as a Spy
among the Continental Troops" by a General Court Martial convened by order
of Major General Putnam on Jan. 13, 1778; General Washington, the Commander in
Chief, ordered the sentence of death to be executed, 12 Id. 449-50. (4)
John Clawson, Ludwick Lasick, and William Hutchinson were convicted of
"lurking as spies in the Vicinity of the Army of the United States"
by a General Court Martial held on June 18, 1780. The death sentence was
confirmed by the Commander in Chief. 19 Id. 23. (5) David Farnsworth and
John Blair were convicted of "being found about the Encampment of the
United States as Spies" by a Division General Court Martial held on Oct.
8, 1778 by order of Major General Gates. The death sentence was confirmed by
the Commander in Chief. 13 Id. 139-40. (6) Joseph Bettys was convicted
of being "a Spy for General Burgoyne" by coming secretly within the
American lines, by a General Court Martial held on April 6, 1778 by order of
Major General McDougall. The death sentence was confirmed by the Commander in
Chief. 15 Id. 364. (7) Stephen Smith was convicted of "being a
Spy" by a General Court Martial held on Jan. 6, 1778. The death sentence
was confirmed by Major General McDougall. Ibid. (8) Nathaniel Aherly and
Reuben Weeks, Loyalist soldiers, were sentenced to be hanged as spies.
Proceedings of a General Court Martial Convened at West Point According to a
General Order of Major General Arnold, Aug. 20-21, 1780 (National Archives, War
Dept., Revolutionary War Records, MS No. 31521). (9) Jonathan Loveberry, a
Loyalist soldier, was sentenced to be hanged as a spy. Proceedings of a General
Court Martial Convened at the Request of Major General Arnold at the Township
of Bedford, Aug. 30-31, 1780 (Id. MS No. 31523). He later escaped, 20
Writings of Washington 253n. (10) Daniel Taylor, a lieutenant in the British
Army, was convicted as a spy by a general court martial convened on Oct. 14,
1777, by order of Brigadier General George Clinton, and was hanged. 2 Public
Papers of George Clinton (1900) 443. (11) James Molesworth was convicted as a
spy and sentenced to death by a general court martial held at Philadelphia,
March 29, 1777; Congress confirmed the order of Major General Gates for the
execution of the sentence. 7 Journals of the Continental Congress 210. See also
cases of "M. A." and "D. C.," G. O. Headquarters of General
Sullivan, Providence, R. I., July 24, 1778, reprinted in Niles, Principles and
Acts of the Revolution (1822) 369; of Lieutenant Palmer, 9 Writings of Washington,
56n; of Daniel Strang, 6 Id. 497n; of Edward Hicks, 14 Id. 357;
of John Mason and James Ogden, executed as spies near Trenton, N. J., on Jan.
10, 1781, mentioned in Hatch, Administration of the American Revolutionary Army
(1904) 135 and Van Doren, Secret History of the American Revolution (1941) 410.
During the War of 1812, William Baker was convicted as a spy and sentenced to
be hanged, by a general court martial presided over by Brigadier General Thomas
A. Smith at Plattsburg, N. Y., on March 25, 1814. National Archives, War Dept.,
Judge Advocate General's Office, Records of Courts Martial, MS No. O-13.
William Utley, tried as a spy by a court martial held at Plattsburg, March 3-5,
1814, was acquitted. Id., MS No. X-161. Elijah Clark was convicted as a
spy, and sentenced to be hanged, by a general court martial held at Buffalo, N.
Y., Aug. 5-8, 1812. He was ordered released by President Madison on the ground
that he was an American citizen. Military Monitor, Vol. I, No. 23, Feb. 1,
1813, pp. 121-122; Maltby, Treatise on Courts Martial and Military Law (1813)
35-36.
In 1862 Congress amended the spy statute to include "all persons"
instead of only aliens. 12 Stat. 339, 340; see also 12 Stat. 731, 737. For the
legislative history, see Morgan, Court-Martial Jurisdiction over Non-Military
Persons under the Articles of War, 4 Minnesota L. Rev. 79, 109-11. During the
Civil War a number of Confederate officers and soldiers, found within the Union
lines in disguise, were tried and convicted by military commission for being
spies. Charles H. Clifford, G. O. No. 135, May 18, 1863; William S. Waller, G.
O. No. 269, Aug. 4, 1863; Alfred Yates and George W. Casey, G. O. No. 382, Nov.
28, 1863; James R. Holton and James Taylor, G. C. M. O. No. 93, May 13, 1864;
James McGregory, G. C. M. O. No. 152, June 4, 1864; E. S. Dodd, Dept. of Ohio,
G. O. No. 3, Jan. 5, 1864. For other cases of spies tried by military
commission, see 2 Winthrop, Military Law and Precedents, 1193 et seq.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*43] [**18] The exception from the Amendments of
"cases arising in the land [***21] or naval forces" was
not aimed at trials by military tribunals, without a jury, of such offenses
against the law of war. Its objective was quite different -- to authorize the
trial by court martial of the members of our Armed Forces for all that class of
crimes which under the Fifth and Sixth Amendments might otherwise have been
deemed triable in the civil courts. The cases mentioned in the exception are
not restricted to those [**19] involving offenses against the law
of war alone, but extend to trial of all offenses, including crimes which were
of the class traditionally triable by jury at common law. Ex parte Mason,
105 U.S. 696; Kahn v. Anderson, 255 U.S. 1, 8-9; cf. Caldwell
v. Parker, 252 U.S. 376.
[*44] Since the Amendments, like § 2 of Article III, do not
preclude all trials of offenses against the law of war by military commission
without a jury when the offenders are aliens not members of our Armed Forces,
it is plain that they present no greater obstacle to the trial in like manner
of citizen enemies who have violated the law of war applicable to enemies.
Under the original statute authorizing trial of alien spies by military
tribunals, the offenders were outside the constitutional guaranty of trial by
jury, not because they were aliens but only because they had violated the law
of war by committing offenses constitutionally triable by military tribunal.
We cannot say that Congress in preparing the Fifth and Sixth Amendments
intended to extend trial by jury to the cases of alien or citizen offenders
against the law of war otherwise triable by military commission, while
withholding it from members of our own armed forces charged with infractions of
the Articles of War punishable by death. It is equally inadmissible to construe
[***22] the Amendments -- whose [*45] primary purpose
was to continue unimpaired presentment by grand jury and trial by petit jury in
all those cases in which they had been customary -- 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. We conclude that the Fifth and Sixth
Amendments did not restrict whatever authority was conferred by the
Constitution to try offenses against the law of war by military commission, and
that petitioners, charged with such an offense not required to be tried by jury
at common law, were lawfully placed on trial by the Commission without a jury.
[***HR21] [21]
Petitioners, and especially petitioner Haupt, stress the pronouncement of this
Court in the Milligan case, supra, p. 121, that the law of war
"can never be applied to citizens in states which have upheld the
authority of the government, and where the courts are open and their process
unobstructed." Elsewhere in its opinion, at pp. 118, 121-22 and 131, the
Court was at pains to point out that Milligan, a citizen twenty years resident
in Indiana, who had never been a resident of any of the states in rebellion,
was not an enemy belligerent either entitled to the status of a prisoner of war
or subject to the penalties imposed upon unlawful belligerents. We construe the
Court's statement as to the inapplicability of the law of war to Milligan's
case as having particular reference to the facts before it. From them the Court
concluded that Milligan, not being a part of or associated with the armed
forces of the enemy, was a non-belligerent, not subject to the law of war save
as -- in circumstances found not there to be present, and not involved here --
martial law might be constitutionally established.
The Court's opinion is inapplicable to the case presented by the present
record. We have no occasion now to define [*46] with meticulous
care the ultimate boundaries of the jurisdiction of military tribunals to try
persons [**20] according to the law of war. It is enough that
petitioners here, upon the conceded facts, were plainly within those
boundaries, and were held in good faith for trial by military commission,
charged with being enemies who, with the purpose of destroying war materials
and utilities, entered, or after entry remained in, our territory without
uniform -- an offense against the law of war. We hold only that those
particular acts constitute an offense against the law of war which the
Constitution authorizes to be tried by military commission.
[***HR22] [22]
Since the first specification of Charge I sets forth a violation of the law of
war, we have no occasion to pass on the adequacy of the second specification of
Charge I, or to construe the 81st and 82nd Articles of War for the purpose of
ascertaining whether the specifications under Charges II and III allege
violations of those Articles or whether if so construed they are
constitutional. McNally v. Hill, 293 U.S. 131.
[***HR23] [23]
There remains the contention that the President's Order of July 2, 1942, so far
as it lays down the procedure to be followed on the trial before the Commission
and on the review of its findings and sentence, and the procedure in fact
followed by the Commission, are in conflict with Articles of War 38, 43, 46, 50
1/2 and 70. Petitioners argue that their trial by the Commission, for offenses
against the law of war and the 81st and 82nd Articles of War, by a procedure
which Congress has prohibited would invalidate any conviction which could be
obtained against them and renders their detention for trial likewise unlawful
(see McClaughry [***23] v. Deming, 186 U.S. 49; United
States v. Brown, 206 U.S. 240, 244; Runkle v. United
States, 122 U.S. 543, 555-56; Dynes v. Hoover, 20 How. 65,
80-81); that the President's Order prescribes such an unlawful
[*47] procedure; and that the secrecy surrounding the trial and all
proceedings before the Commission, as well as any review of its decision, will
preclude a later opportunity to test the lawfulness of the detention.
Petitioners do not argue and we do not consider the question whether the
President is compelled by the Articles of War to afford unlawful enemy
belligerents a trial before subjecting them to disciplinary measures. Their
contention is that, if Congress has authorized their trial by military
commission upon the charges preferred -- violations of the law of war and the
81st and 82nd Articles of War -- it has by the Articles of War prescribed the
procedure by which the trial is to be conducted; and that, since the President
has ordered their trial for such offenses by military commission, they are
entitled to claim the protection of the procedure which Congress has commanded
shall be controlling.
We need not inquire whether Congress may restrict the power of the Commander in
Chief to deal with enemy belligerents. For the Court is unanimous in its
conclusion that the Articles in question could not at any stage of the
proceedings afford any basis for issuing the writ. But a majority of the full
Court are not agreed on the appropriate grounds for decision. Some members of
the Court are of opinion that Congress did not intend the Articles of War to
govern a Presidential military commission convened for the determination of
questions relating to admitted enemy invaders, and that the context of the
Articles makes clear that they should not be construed to apply in that class
of cases. Others are of the view that -- even though this trial is subject to
whatever provisions of the Articles of War Congress has in terms made
applicable to "commissions" -- the particular Articles in question,
rightly construed, do not foreclose the procedure prescribed by the President
or that shown to have been employed [*48] by the Commission, in a
trial of offenses against the law of war and the 81st and 82nd Articles of War,
by a military commission appointed by the President.
Accordingly, we conclude that Charge I, on which petitioners were detained for
trial by the Military Commission, alleged an offense which the President is
authorized to order tried by military commission; that his Order convening the
Commission was a lawful order and that the Commission was lawfully constituted;
that the petitioners were held in lawful custody and did not show cause for
their discharge. It follows that the orders of [**21] the District
Court should be affirmed, and that leave to file petitions for habeas corpus in
this Court should be denied.
MR. JUSTICE MURPHY took no part in the consideration or decision of these
cases. The following is the per curiam opinion filed July 31, 1942:
PER CURIAM.
In these causes motions for leave to file petitions for habeas corpus were
presented to the United States District Court for the District of Columbia,
which entered orders denying the motions. Motions for leave to file petitions
for habeas corpus were then presented to this Court, and the merits of the
applications were fully argued at the Special Term of Court convened on July
29, 1942. Counsel for petitioners subsequently filed a notice of appeal from
the order of the District Court to the United States Court of Appeals for the
District of Columbia, and they have perfected their appeals to that court. They
have presented to this Court petitions for writs of certiorari before judgment of
the United States Court of Appeals for the District of Columbia, pursuant to 28
U. S. C. § 347 (a). The petitions are granted. In accordance with the
stipulation between counsel for petitioners and for the respondent, the papers
filed and argument had in connection with the applications for leave to file
petitions for habeas corpus are made applicable to the certiorari proceedings.
The Court has fully considered the questions raised in these cases and
thoroughly argued at the bar, and has reached its conclusion upon them. It now
announces its decision and enters its judgment in each case, in advance of the
preparation of a full opinion which necessarily will require a considerable
period of time for its preparation and which, when prepared, will be filed with
the Clerk.
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.
MR. JUSTICE MURPHY took no part in the consideration or decision of these
cases.