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Ex Parte Quirin, a Troubling Precedent for Military Commissions

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Ex Parte Quirin, a Troubling Precedent for Military Commissions University of Louisville ThinkIR: The University of Louisville's Institutional Repository Electronic Theses and Dissertations 5-2010 The laws will fall silent : Ex Parte Quirin, a troubling precedent for military commissions. Brad P. Luebbert 1968- University of Louisville Follow this and additional works at: https://ir.library.louisville.edu/etd Recommended Citation Luebbert, Brad P. 1968-, "The laws will fall silent : Ex Parte Quirin, a troubling precedent for military commissions." (2010). Electronic Theses and Dissertations. Paper 864. https://doi.org/10.18297/etd/864 This Master's Thesis is brought to you for free and open access by ThinkIR: The University of Louisville's Institutional Repository. It has been accepted for inclusion in Electronic Theses and Dissertations by an authorized administrator of ThinkIR: The University of Louisville's Institutional Repository. This title appears here courtesy of the author, who has retained all other copyrights. For more information, please contact [email protected]. "THE LAWS WILL FALL SILENT: EX PARTE QUIRIN, A TROUBLING PRECEDENT FOR MILITARY COMMISSIONS" By Brad P. Luebbert B.E.S., University of Missouri, Columbia, 1991 A Thesis Submitted to the Faculty of the College of Arts and Sciences of the University of Louisville In Partial Fulfillment of the Requirements for the Degree of Master of Arts Department of History University of Louisville Louisville, Kentucky May 2010 ------------------------------------------------------- Copyright 2010 by Brad P. Luebbert All rights reserved "THE LAWS WILL FALL SILENT: EX PARTE QUIRIN, A TROUBLING PRECEDENT FOR MILITARY COMMISSIONS" By Brad P. Luebbert B.E.S., University of Missouri, Columbia A Thesis Approved on April 13th, 2010 By the following Thesis Committe~ Jfi1esis Direct~r ii For my girls iii ACKNOWLEDGEMENTS First and foremost I would like to thank my wife Sarah for supporting me throughout this entire endeavor, for without her, I do not think I would have been able to complete this thesis. Dr. Thomas C. Mackey, to whom I also owe a great deal of gratitude. Professor Mackey was the first University of Louisville History professor I met when I arrived on campus and inquired about pursuing my Graduate Degree in History. From our first meeting until present, he has challenged me and kept me on track to complete this thesis. Doctor's Wayne Lee and Paul Sidelko. Dr. Sidelko, although amused by my initial ideas on my first graduate level paper on the Crusades, he understood my passion and kept me focused. Dr. Wayne Lee, fostered my devotion to early American History. Doctor's Benjamin Harrison and Gary Gregg who sat on my committee and offered their time, passion, and suggestions on my thesis. Louis Fisher, while writing this thesis he entertained all my crazy questions and always wrote back. I am honored Mr. Fisher took his personal time to help a graduate student complete his thesis. The members of the Supreme Court Historical Society who helped me acquire information not available by me or the University in a timely manner. To FM, you knew how hard to push, how to push the right buttons to get me motivated, and helped me stay in "the past and not in the present." iv And most importantly to my daughter Madeleine who put things in perspective after my first draft editing. After seeing the look on my face, she asked me what was wrong. I told her that Daddy doesn't write very well. She replied innocently, "But Daddy, you color good." Needless to say, she allowed me to keep a positive perspective throughout this endeavor knowing that her daddy colored well. v ABSTRACT "THE LAWS WILL FALL SILENT: EX PARTE QUIRIN, A TROUBLING PRECEDENT FOR MILITARY COMMISSIONS" BRAD P. LUEBBERT APRIL 13 2010 For over two hundred years a major issue in the history of the United States is the contentious issue of military commissions. Military commissions are not new or specific to the United States, but the United States traces its first military commission to the trial of a British officer, Major John Andre in September 1780. This thesis is about the trial of Nazi saboteurs before a military commission and their battle before the United States Supreme Court. A fight pitting civil liberties and due process versus national security during the time of war and crisis in the United States during World War II that resulted in the Supreme Court's Ex Parte Quirin decision in 1942 which established a dangerous and troubling precedence. The Nazi saboteur case of July 1942 was not a snapshot in time but a precedent that the United States is dealing with at the present time. This thesis demonstrates that a pattern exists concerning civil liberties and national security in the United States. The federal government in times of war and crisis, restrict civil liberties in the name of national security, and only after the crisis passed, do policy makers acknowledge error. Ex parte Quirin is a reminder about the need for balance between rights and liberties in the context of war-time. vi TABLE OF CONTENTS PAGE ACKNOWLEDGEMENTS ..................................................................... iv ABSTRACT ....................................................................................... vi INTRODUCTION............................................................................. ... 1 CHAPTER ONE: THE SABOTEURS ........................................................ 6 CHAPTER TWO: THE MILITARY TRIAL. ............................................... 32 CHAPTER THREE: THE BATTLE BEFORE THE SUPRME COURT ................ 56 CHAPTER FOUR: EX PARTE QUIRIN. .. ................................................... 87 CONCLUSION ................................................................................... 103 REFERENCES .................................................................................... 109 CURRICULUM VITAE ......................................................................... 118 vii INTRODUCTION For over two hundred years a major issue in the history of the United States is the contentious issue of military commissions. While military commissions are not new or specific to the United States, the Americans can trace their first military commission to the trial of a British officer, Major John Andre in September 1780. The United States military used military commissions during the War of 1812 up to and including the Civil War to try both civilian and military personnel. After the Civil War, the military avoided using commissions but re-instituted them at the commencement of World War II. The first military commission, originally called a court of inquiry, convened to hear the case against Major John Andre. Andre had been captured by the Colonial Army behind enemy lines and in civilian clothes and therefore, tried as a spy instead as a prisoner of war. After Andre's capture, General George Washington convened a board of fifteen general officers to conduct the trial of Andre in order to determine his guilt or innocence. On September 29, 1780, the board found Andre guilty of being behind enemy lines and in disguise and ordered Andre to hang. On October 2, 1780, the United States first military commission concluded with the hanging of Major Andre. After the American Revolution, military commissions did not playa role in the United States until the War of 1812 when General Andrew Jackson declared 1 martial law in New Orleans in the anticipation of the British invasion. On December 15, 1814, Jackson issued a general order for martial law which required anyone entering New Orleans to report to the Adjutant General's office, and anyone wishing to leave New Orleans to obtain permission in writing from General Jackson. Failure to do so resulted in arrest and detention. After the American victory at the Battle of New Orleans, residents expected Jackson to lift martial law, but he did not. In defiance to Jackson and martial law, Louis Louallier wrote in the local newspaper that civilians accused of a crime should be heard before a civilian judge, not military tribunals. On March 5,1815, Jackson had Louallier arrested on the charge of inciting mutiny and disaffection in the army. Louallier's attorney went to the United States District Judge Dominick Augustin Hall to request a writ of habeas corpus which the judge granted after concluding martial law was no longer justified. Jackson ordered his officers that if anyone served a writ of habeas corpus for Louallier, then that person would be arrested and confined. 1 Andrew Jackson continued the use of military tribunals in Florida during the Seminole War in 1818. Jackson accused two British subjects, Alexander Arbuthnot and Robert Christy Ambrister of inciting and aiding the Creek Indians against the United States. Both men pleaded not guilty and the military tried them by a special court established by Jackson consisting of eleven officers. The court found Arbuthnot guilty and sentenced to be hung. Further, the court found Ambrister guilty 1 Louis Fisher. Military Tribunals and Presidential Power: American Revolution to the War on Terrorism (University Press of Kansas, 2005) 25. 2 and sentenced him to be shot, but the Court later reduced his sentence to 50 lashes. Jackson over rode the verdict and ordered Ambrister shot to death. 2 Less than thirty years later in 1846, at the start of the Mexican War, General Winfield Scott drafted an order calling for martial law in Mexico. Determined to not allow undisciplined soldiers create havoc in the Mexican population, Scott thought martial law imperative to his efforts
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