Vic Socotra

07 September 2009

ex Parte Quirin

(Military Tribunal Deliberates, 1942)

Note: I would prefer to go back to the Big Pink pool. I got revved up again late yesterday with the usual suspects, and this morning an alert reader commented thusly:

“Who the hell is in charge of this place where all of you live and pay the bills? If I weren't a lovely, conservative and well-behaved lady, I'd be at the pool whenever the hell I wanted to be, with whomever and doing whatever. Did someone take away everyone's huevos when y'all moved in? Shit, if there's a right to bear arms in national parks, there ought to be a right to party where you live. Man up, put on the big girl pants and all of you stage an insurrection. Life's too short for bogus, irrelevant and arbitrary rules. Don't fire 'til you see the whites of their eyes and then, full speed ahead and damn the schmucks who want to ruin everything.
Signed,
The Witch from the West Coast”

Naturally, I could not agree more, but I am stuck with trying to get this story off the plate. Honestly, there will be something interesting here in just a minute.

Here goes: #278 was in the news again as President Bush attempted to use military tribunals located in a place not subject to US civilian courts to try American citizens after the 9/11 attacks. The place was Guantanamo, of course, and the precedent dated back to t he Civil War, when the District of Columbia was under marshal law.

President Lincoln had dealt with habeas corpus the way he had to. He suspended the basic premise of law under the Constitution. Extraordinary times call for extraordinary means, I suppose, and there was nothing more extraordinary than what happened after his assassination.

Hundreds were detained in the frenzy after the slaying of the President by John Wilkes Booth and his band. Ten individuals, including one woman, would ultimately be the Federal targets. Booth himself was dead in a Maryland shoot-out; John Surratt, a comrade from an earlier unsuccessful attempt to kidnap the President was at large.

The other eight were rounded up and stashed at the Washington Arsenal to face a military tribunal. Part of the old arsenal still stands across the parade ground from the War College at Fort McNair, and we used to park our cars near the tennis courts where the conspirators were hanged.

If you think these things are easy at any time, you would naturally be wrong.

Richmond had fallen the week before Lincoln was shot down at Ford’s Theater. Robert E. Lee’s surrender at Appomattox effectively ended military operations, but=2 0Confederate President Jefferson Davis was still on the loose, and the last Southern general would not lay down his arms until late June. The District of Columbia was still technically under martial law; the sense of the times was that a military court was the way to go.

And it was done.

They were all American citizens who were executed, and the nuance here is important. The tribunals proposed to deal with all the illegal enemy combatants would be held in a place where only military law ruled, the naval reservation under disputed lease with the Cuban communists.

At least two of the described terrorists were Americans- John Walker Lindh and Jose Padilla- and thus needed special procedures.

Therefore, the Civil War precedent was focused through the 1942 decision against the Long Island Boys and the Ponte Vedra Bund.

That was the decision known as ex parte Quirin- the Supreme Court ruling regarding the Nazi saboteurs.

The FBI is quite efficient at rounding people up, once they are told who they are, and within two week of landing, all eight Germans agents were in custody, along with assorted wives, girlfriends and family.

Of course, #276- or Richard Quirin, back when he had a name, was a German citizen. Of both teams, only #278 – Herbie Haupt- was a US citizen.

The appeal for habeas corpus was filed for all eight in the name of Richard Quirin. The Supreme Court was asked to consider the appeal against the provisions of Franklin Roosevelt’s Proclamation of July 2, 1 942 (a little more than two weeks after the U-boats offloaded the hapless Nazis), 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."

Put plain, here was the Question before the Court:

“Is the detention of Richard Quirin and his fellow-petitioners for trial by Military Commission, on charges preferred against them for violations of the Geneva Convention and the Articles of War, in conformity to the Constitution of the United States?”

Conclusion by the High Court:

“Yes. The President, with certain limitations, may prescribe the procedure for military commissions, for prisoners charged with relieving, harboring, corresponding or spying for the enemy.”

In a nutshell, that is ex parte Quirin, and that is the justification for the proceedings that have not quite worked out that smoothly at Camp X-Ray in Cuba.

They were much more efficient in World War Two. Despite the fact that the civil courts were still very much operational in the District, the day after the president’s proclamation the Judge Advocate General's Department of the Army prepared and lodged with the Commission the following charges against Quirin petitioners, supported by specifications:

1. V iolation 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 was comprised of seven U.S. Army officers appointed by the President. The prosecution was headed by Attorney General Frances Biddle and the Army Judge Advocate General, Major General Myron C. Cramer. Defense counsel included Colonel Kenneth C. Royall, who would later be the last Secretary of War under Harry Truman (and arguably one of the last Secretaries to have won one) and Major Lausen H. Stone, son of the Chief Justice of the U.S. Supreme Court).

They met with the prisoners in the dock on July 8, 1942, in what is now known as the Robert F. Kennedy Department of Justice Building at 950 Pennsylvania Avenue, NW.

It is a grand building of the vaguely Greek Bureau style, located on a Masonic trapezoidal lot west of the National Archives Building, east of the Internal Revenue Service building, north of the National Mall, and south of the J. Edgar Hoover FBI Building.

The Commission proceeded as the High Court deliberated on its legality. A preliminary decision was issued by the Supremes on 31 July, but the full version did not emerge until the end of October, which would have been unfortunate timing, had they changed their minds.

The Commission had wrapped things up on August 4, 1942, and swiftly resolved the matter.

All eight of the saboteurs, including John George Dash and Ernst Peter Burger, who ratted out their comrades, were found guilty and sentenced to death, said punishment to be executed post haste.

They did things quickly in those days. It seemed there was a war on.

I'll tell you more about it tomorrow- the hell with it. it is the last Monday the pool is open, and that is where I'm going, post haste.

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