Ex Parte Quirin, 317 US 1 (1942) is a Supreme Court case that upheld the jurisdiction of a United States military tribunal. It has been cited as a precedent for a trial by military commission of any unlawful combatant against the US.
President Franklin Roosevelt ordered miliary tribunals for eight German prisoners accused of planning sabotage in the United States. His decision was challenged but upheld in Quirin:
“...the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful....”In his draft opinion, Justice Jackson grants sweeping powers to the President. He concludes that (1) the President has the inherent authority to create military tribunals, (2) this authority could not be regulated by Congress, and (3) this power was by virtue of the President’s power as Commander in Chief.
He questioned the Court’s ability to review the President’s actions as well. He felt that dealing with enemy prisoners of war was a foreign policy issue that touched upon issues of national security and political questions - wholly out of the province of the judiciary.
HAMDAN VS RUMSFELD
In July 2004, Salim Ahmed Hamdan was charged with conspiracy to commit terrorism. The Bush administration made arrangements to try him before a military commission. Hamdan filed a petition for a writ of habeas corpus, arguing that the military commission convened was illegal and lacked the protections required under the Geneva Conventions and the US Code of Military Justice.
Judge James Robertson of the US District Court OF DC ruled in Hamdan’s favor, finding that the US could not hold a military commission unless it was first shown that the detainee was not a prisoner of war.
On July 15, 2005, the three judge panel of Randolph, Roberts, and Williams, in the US Court of Appeals, reversed this ruling.
On Jun 29, 2006, the Supreme Court, in Hamdan vs Rumsfeld, reversed the ruling of the Court Of Appeals - holding that President Bush did not have the authority to set up the war crimes tribunals and finding the special military commissions illegal under both military justice law and the Geneva Conventions.
Chief Justice Roberts recused himself as he had already ruled as part of the three judge panel.
Justice Breyer wrote in his concurring opinion that the commissions are not necessarily prohibited, as long as Congress approves them:
“...Nothing prevents the President from returning to Congress to seek the authority he believes necessary...Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine - through democratic means - how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.”Question: As the people do not want the terrorist trial to be in New York, why isn’t President Obama going to Congress to seek the necessary authority to hold it in a military tribunal?
Justices Scalia, Thomas, and Alito wrote dissenting opinions - all asserting that the courts had no jurisdiction in this case. They felt that the military commission was legal.
Thomas stated that Hamdan is an “illegal combatant and therefore not protected by the Geneva convention; that the Geneva convention doesn’t prohibit the special court council proposed; and that the President had authority to set up the special court council proposed.
This issue will probably be revisited in the Courts. The findings of Ex Parte Quirin conflict with that of Hamdan vs Rumsfeld. Arguments citing both findings will probably be used again.
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