Ex parte Quirin, 317 U.S. 1 (1942)

"Quirin was based upon a fraud perpetrated on the Supreme Court." (http://www.nacdl.org/public.nsf/newsreleases/2002mn003?opendocument)

"Ex parte Quirin was a very bad decision at the time it was handed down. In 1942 the United States was looking at an uphill battle after getting caught off guard at Pearl Harbor." (www.justicescholars.org/pegc/letters/quirin_analysis.txt)

A Supreme Court case where eight German saboteurs were caught on U.S. soil. Six of the eight were put to death (executed on presidential orders via Military Commission), the other two were pardoned (they helped catch the other six). The main basis of argument is they were not prisoners of war or lawful combatants because they were not in uniform. This case has set precedents of arguments over the legality and treatment of prisoners of war. It is important to understand the Geneva Convention and The Articles of War to understand this case. The question presented here is whether or not they were:

  1. Prisoners of war
  2. Lawful combatants
  3. and whether or not they could be put to death
  4. Times of war versus times of peace (1942 we were at war with Germany)(Compare with the unofficial "War on terrorism")

It is interesting to note what Nathaniel Berman (professor of law at Brooklyn Law School) has to say on the matter of war times. "The "war on terrorism," especially since 9/11, and the conflict with Iraq since 1990... with examples of this instrumentalization of the legal distinction between war and not-war, between "exceptional" violence and "normal" interaction, between bellicose coercion and long-term regulation. These shifts have often been deliberately used to achieve strategic effects on the battlefield or in the realm of public opinion." (Lexis-nexis.com) "Wars are conflicts between public entities, not between individuals." This seems off topic, but when considering the definition of combatants it is definitly topical. "Ordinary combatants, in other words, cannot be prosecuted for violations of jus ad bellum, though they can be prosecuted for violations of jus in bello." (Lexis Nexis)

Constitutionally, the president does not have authority to bypass the articles of war. "Violations of articles of war: 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." (www.law.umkc.edu/faculty/projects/ftrails/conlaw/quirin.html) Roosevelt abused his powers to put these men to death in the short time frame of a few days. The Supreme Court 9-0 decision in support of Roosevelt was seemingly pressured.


"Function of identification... members of regular armed forces...constitutive criteria - such as wearing of a distinctive sign, generally a military uniform - to qualify as prisoners of war in case of capture... it is a misinterpretation of the Geneva Convention to deny prisoner-of-war status to all captured combatants belonging to the armed forces of a State on the sole basis that they failed to wear a uniform."(www.icrc.org) This is a condensed version of what is posted from that source, periods added between statements (long jumps). I'd like to propose that the terrorists who attacked on 9/11 (September 11, 2001) were in uniform. They wore red bandanas. It fits all the criteria, a sign used for identification and empowerment. They had all been trained, etc.

    Article 4(A) of the GPW, those entilted to prisoner of war status include the following:

  • Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
  • Members of other militias and members of other volunteer corps... organized resistance movements, (includes both) operating in or outside their own territory, even if this territory is occupied, (must) 'fulfil' the following conditions:
    1. that of being commanded by a person responsible for his subordinates;
    2. that of having a fixed distinctive sign recognizable at a distance;
    3. that of carrying arms openly;
    4. that of conducting their operations in accordance with the laws and customs of war.
  • Members of regular armed forces who profess allegiance to a government or an ahtuority not recognized by the Detaining Power.
  • "The U.S. government maintained that the Taliban failed comply with the four criteria (1. Command structure, 2. distinctive sign, 3. open bearing of arms, 4. compliance with jus in bello.) and, therefore, that none of its members were entitled to POW status. (Lexis Nexis) Just as they argued the eight Germans failed to comply. I argue that both those involved in the Quirin case and "terrorists" comply with and fall under the Articles of War and the Geneva Convention. If the government can justify torturing a "non-combatant" the next step is the ability to justify torturing its own citizens. We have strict laws about how and what we can do to captured combatants.

    What does this mean today?

    Its important to first point out that Jackson in his unpublished opinion stated: 1. The Supreme Court when leaning towards its decision was using an "erroneously interpretation of the Articles of War." 2. "Jackson worried ... the Court's construction of the Articles of War would weaken the rights of U.S. civilians during military government by intimating that the President could establish military commissions to try such civilians without the safeguards of the Articles." 3. "The custody and treatment of such prisoners of war is an exclusively military responsibility." (The Green Bag)

    President Bush copies Roosevelt's use of bypassing laws and military tribunals to accomplish alternative goals.

    • Guantanamo Bay Prisoners (along with all other unethical "terrorist suspect" prison camps). It is also interesting to note that in July (2006) there was a ruling by the Supreme Court that Bush is in violation with such prisons.
    • Bush does not follow the Geneva convention.
    • Bush uses a flawed interpretation of the Articles of War.

    Ex parte Quirin is a case likely to be overturned sooner than later. Obviously because it’s the basis of Bush's off center policies, it will destroy international law as we know it. Quirin violates Article 5 of the Third Geneva Convention, misinterprets the articles of war section 4(A), is the cause of U.S. unpolitical humanitarian problems, and needs to be over turned. If we don't follow the only firm piece of international law, the Geneva Convention, there is nothing to stymie chaos. "The fact that the President is now seeding the Supreme Court with people who have been handmaidens in his efforts to increase the power of the executive without any check or oversight whatsoever is very disturbing," said Bill Goodman, legal director of the Center for Constitutional Rights, which sued Bush on behalf of prisoners at the US facility at Guantanamo Bay, Cuba. (www.boston.com/news/nation/articles/2005/10/05/miers_has_backed_wide_executive_role/) Basically Bush doesn't want to give these prisoners Geneva protection, or prisoner of war status - because they weren't "lawful combatants." Just as in Ex parte Quirin.

    The Main Point

    Ex parte Quirin shakes the definition of a combatant and what the President can do to captured people. "To be sure, law will not necessarily succeed in its attempt to channel violence into particular forms. The denial of the combatants' privilege to some combatants does not mean that they will not engage in combat. One may even speculate as to whether those fighting without the privilege may do so with a special ferocity, precisely because the stakes are so high. (Lexis Nexis)

    Ex parte Quirin and structures justified by its basis "seemed designed to put many of the detainees beyond the reach of any law at all. (Lexis Nexis)

    I searched for material supporting Ex parte Quirin, reasons why we should keep the case... I found little or no qualifying information, if you find such information I would love to add it to this article to contrast and compare points. As is, I was only able to write an article basically calling for the overturning of Ex parte Quirin and its disadvantages.

    "(r) eliserh says re Ex parte Quirin: It's important to note that Ex Parte Quirin isn't particularly useful today as precedent, as it was decided well before the 1949 Geneva Conventions, which eliminated the possibility of "unlawful combatant" status (used by the Nazis to justify mass executions in villages where partisans operated). Today, there are only two possible legal statuses: combatant and noncombatant (defined in the 4th Geneva Convention as anyone who doesn't fit in the 3rd convention's definition of a combatant)."

    See also: gherebi v. bush

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