eral Agencies, to assist the Secretary of War or the said
Military Commanders in carrying out this Executive
Order, including the furnishing of medical aid, hospitaliza-
tion, food, clothing, transportation, use of land, shelter,
and other supplies, equipment, utilities, facilities, and ser-
vices.
This order shall not be construed as modifying or lim-
iting in any way the authority heretofore granted under
Executive Order No. 8972, dated December 12, 1941, nor
shall it be construed as limiting or modifying the duty and
responsibility of the Federal Bureau of Investigation, with
respect to the investigation of alleged acts of sabotage or
the duty and responsibility of the Attorney General and
the Department of Justice under the Proclamations of
December 7 and 8, 1941, prescribing regulations for the
conduct and control of alien enemies, except as such duty
and responsibility is superseded by the designation of mil-
itary areas hereunder.
Franklin D Roosevelt
The White House,
February 19, 1942.
Source:
Federal Register, Vol. 7, no. 38, (February 25, 1942): 1,407.
Ex Parte Quirin, 1942
This decision upheld the power of the president of the United
States to convene military tribunals for unlawful combatants. It
involved eight men of German descent who had previously
lived in the United States, including one who claimed U.S. cit-
izenship through his parents. In June 1942 these men came
into the United States from German submarines, four in Ama-
gansett, Long Island, New York, and four at Ponte Vedra Beach
in Florida. Their intention was to blow up industrial plants and
transportation facilities. After landing, they buried their Ger-
man uniforms and donned civilian clothes. A suspicious Coast
Guardsman patrolling the Long Island beach stopped them.
Although he didn’t detain anyone, he may have sufficiently
frightened one, George Dasch, that he telephoned the FBI. The
Coast Guard, meanwhile, located the buried uniforms and
also called the FBI. Several days later, Dasch turned himself in
to the bureau in Washington and pointed out the other seven
saboteurs. Within two weeks they were all in custody. After
their secret two-day trial, July 29–30, they were sentenced to
death. President Roosevelt, however, commuted the sentences
of Dasch and Ernest Burger, who also helped, to 30 years. The
others were executed August 8, 1942. President Truman
granted Dasch and Burger clemency in 1948 and then
deported them.
The details of the incident remained secret throughout the
war, enabling the public (and the Germans) to believe that it
was the quick investigative work of the FBI that solved the case
so expeditiously. In fact, no other documented instance of
German sabotage occurred after their arrests.
The opinion, written by Chief Justice Harlan Fiske Stone,
could be considered “after the fact.” President Franklin D.
Roosevelt wanted it to be resolved quickly, and the courts
expedited the saboteurs’ petitions for habeas corpus. He
wanted them tried out of the public eye by military tribunal
and that is what the Court’s decision, on narrow grounds, gave
him. It issued an unsigned, paragraph-long per curiam opinion
on July 31, 1942, denying the petitioners their writ and affirm-
ing that they could be tried by military commission. However,
the full decision, backed up with references to the constitu-
tion, statutes, and case law, was not handed down until Octo-
ber 29, months after six saboteurs had been hanged.
Nevertheless, it has not been overturned. President
George W. Bush referred to
Quirin
in his decision to establish
military tribunals for potential terrorists after the events of
September 11, 2001. The decision also appeared to bolster
Bush’s contention that detainees, including American citi-
zens, who fought with the Taliban in Afghanistan should be
considered unlawful combatants rather than prisoners of war.
Justice Murphy took no part in the consideration or deci-
sion of these cases.
________________________
h
_______________________
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 Commis-
sion, appointed by Order of the President of July 2, 1942,
[317 U.S. 1, 19] on charges preferred against them pur-
porting to set out their violations of the law of war and of
the Articles of War, is in conformity to the laws and Con-
stitution of the United States.
. . . 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 pre-
serve unimpaired the constitutional safeguards of civil lib-
erty, and because in our opinion the public interest
required that we consider and decide those 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. . . .
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