Military Tribunals: The Quirin Precedent

Publication Date: March 2002

Publisher: Library of Congress. Congressional Research Service

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Research Area: Law and ethics

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Abstract:

On November 13, 2001, President George W. Bush issued a military order to provide for the detention, treatment, and trial of those who assisted the terrorist attacks on the two World Trade Center buildings in New York City and the Pentagon on September 11. In creating a military commission (tribunal) to try the terrorists, President Bush modeled his tribunal in large part on a proclamation and military order issued by President Franklin D. Roosevelt in 1942, after the capture of eight German saboteurs.

This report describes the procedures used by the World War II military tribunal to try the eight Germans, the habeas corpus petition to the Supreme Court, and the resulting convictions and executions. Why was the tribunal created, and why were its deliberations kept secret? How have scholars evaluated the Court's decision in Ex parte Quirin (1942)? The decision was unanimous, but archival records reveal division and disagreement among the Justices.

Also covered in this report is a second effort by Germany two years later to send saboteurs to the United States. The two men captured in this operation were tried by a military tribunal, but under conditions and procedures that substantially reduced the roles of the President and the Attorney General. Those changes resulted from disputes within the Administration, especially between the War Department and the Justice Department. There are thus two precedents from Quirin: one from 1942, the other from 1944-45.

On March 21, 2002, the Department of Defense issued rules implementing the Bush military order for tribunals. At the news briefing, DOD General Counsel William J. Haynes II cited the 1942 decision in Quirin for legal support. The Supreme Court, he said, "found that the president's order in that case was constitutional and properly applied."

For a legal analysis of military commissions in a broad context, see CRS Report RL31191, Terrorism and the Law of War: Trying Terrorism as War Criminals before Military Commissions, by Jennifer Elsea.