Vanderbilt Law Review Volume 66 | Issue 1 Article 3 1-2013 Judicial Review for Enemy Fighters: The ourC t's Fateful Turn in "Ex parte Quirin", the Nazi Saboteur Case Andrew Kent Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the International Law Commons Recommended Citation Andrew Kent, Judicial Review for Enemy Fighters: The ourC t's Fateful Turn in "Ex parte Quirin", the Nazi Saboteur Case, 66 Vanderbilt Law Review 150 (2019) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol66/iss1/3 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Judicial Review for Enemy Fighters: The Court's Fateful Turn in Exparte Quirin, the Nazi Saboteur Case Andrew Kent 66 Vand. L. Rev. 153 (2013) The last decade has seen intense disputes about whether alleged terrorists captured during the nontraditional post- 9/11 conflict with al Qaeda and affiliated groups may use habeas corpus to challenge their military detention or military trials. It is time to take a step back from 9/11 and begin to evaluate the enemy combatant legal regime on a broader, more systemic basis, and to understand its application to future conflicts. A leading precedent ripe for reconsideration is Ex parte Quirin, a World War II-era case in which the Supreme Court held that saboteurs admittedly employed by an enemy nation's military had a right to access civilian courts during wartime to challenge their trial before a military commission. Even though admitted members of an enemy nation's military had never before accessed the civilian justice system during wartime, the Court in Quirin declined to explain why it reversed course in such a significant fashion. Since and because of Quirin, it has become accepted that literally any individual present in the United States has a constitutional right to habeas corpus. This Article first shows that on the legal merits, the Quirin Court's ruling on court access was erroneous. The history of lack of court access for enemy fighters and nonresident enemy aliens is reviewed, starting with the English common law background on which the U.S. Constitution was written and continuing through the Founding period to the Civil War, World War I, and beyond. Second, the Article seeks to explain why the Court acted in such a surprising fashion in Quirin-ruling in favor of unsympathetic enemies during wartime, even though case law and other legal authorities provided solid reasons to reject their plea for court access. To do so, the Article draws on a diverse set of explanatory tools, including those of legal history and political science. Next, the Article shows that Quirin's rejection of the old framework governing court access for enemy fighters and nonresident enemy aliens has had profound but underappreciated doctrinal consequences-including helping lead to the result in Boumediene v. Bush. The Article then argues that, as a policy matter, admitted or otherwise undisputed combatants in an enemy nation's employ do not need and probably should not have a right to access U.S. courts during wartime. Quirin was thus wrong on the law and highly problematic as policy. Finally, the Conclusion highlights both current and potential future situations in which the Article's legal analysis could be important. $@ Judicial Review for Enemy Fighters: The Court's Fateful Turn in Exparte Quirin, the Nazi Saboteur Case Andrew Kent* I. INTRODUCTION .................................... 154 II. BACKGROUND AND LITIGATION IN QUIRIN..... ............. 160 A. The Saboteurs ............................ 160 B. The Decision for a Military Commission.... ..... 162 C. The President'sProclamations ........... ..... 163 D. The Court's Two Decisions ................... 165 III. HABEAS LAW PRIOR TO 1942 ........... ............. 169 A. The Allegiance and Protection Framework ................ 176 B. English Law ................................... 178 C. American Reception and Application of the Common Law Rules ................ ........ 188 1. Court Access for Civilian Alien Friends and Enemies .........................188 2. Prisoners of War .............................193 D. The Civil War .............................. 196 E. The Spanish-American War and Filipino Insurrection .............................. 205 F. World War I............................... 206 * Associate Professor, Fordham Law School; Faculty Advisor, Center on National Security, Fordham Law School. This Article benefitted from workshops at Columbia, Georgetown, and Fordham Law Schools, and a meeting of the American Society of International Law's Interest Group on International Law in Domestic Courts, held in 2011 at Brigham Young University Law School, as well as from the generous comments of many other readers. In particular, thanks are due to Marc Arkin, David Danelski, Laura Donohue, Martin Flaherty, Abner Greene, Aziz Huq, Robert Kaczorowski, Joseph Landau, Marty Lederman, Thomas Lee, Ethan Leib, Peter Margulies, Henry Monaghan, Trevor Morrison, Julian Mortenson, David Pozen, Mike Ramsey, David Sloss, Paul Stephan, David Stewart, Ed Swaine, Joseph Sweeney, Adam Thurschwell, Carlos Vazquez, Steve Vladeck, Matt Waxman, Ben Wittes, and Benjamin Zipursky. Thanks also to Paul Halliday for a helpful discussion. 153 154 VANDERBILT LAW REVIEW [Vol. 66:1:153 1. Trading With the Enemy Act ....... ...... 206 2. Case Law and Commentary ........ ......... 208 a. Cases ConcerningEnemy Civilians ................. ..... 208 b. Prisonersof War ........... ..... 209 IV. THE OTHER 1942 DECISIONS ABOUT ALIEN ENEMY ACCESS TO CIVILIAN COURTS ......................... 211 A. Ex parte Colonna ...................... ...... 211 B. Ex parte Kawato ............................. 212 V. THE CASE OF HAUPT, THE U.S. CITIZEN.......... ...... 213 VI. EXPLAINING THE QUIRIN DECISION ............... ..... 215 A. The Justices'Backgrounds ..........................217 B. The Broader Legal Context ................... 219 C. The Politically Acceptable Scope of Judicial Review ..................... ............. 221 1. The President ..................................221 2. Public Opinion ............................. 223 D. Fearsof PresidentialDomination ....... ....... 225 1. Ideological, Political, and Institutional Contexts ........................225 2. The Executive's Mishandling of the Court Access Issue Raised Fears of Executive Overreaching ................. 229 E. Court Processes and Internal Dynamics.... ..... 232 VII. THE SIGNIFICANCE OF THE COURT'S REVERSAL .... ...... 242 A. Quirin as a Precedent ...............................242 B. Quirin as Policy ........................... 248 VIII. CONCLUSION ................................ ...... 250 I. INTRODUCTION In 1942, in the middle of World War II, the Supreme Court entertained a habeas corpus petition filed by German military saboteurs who had been caught by the FBI after slipping into the United States and ordered by President Roosevelt to be put on trial for their lives before a hastily conceived military commission sitting in Washington, DC. The administration argued to the Supreme Court as a threshold matter that admitted members of an enemy's military who invaded the United States during wartime lacked any right to access civilian courts. On the merits, the government contended that the saboteurs had no substantive constitutional or statutory rights to be 2013] EX PARTE QUIRIN 155 free from military detention and trial. The proceedings before the Supreme Court were extraordinary. The Court received briefs two days after announcing it would hear the case and held argument that day and the next. Immediately afterward, the Court issued an exceptionally terse per curiam opinion, captioned Ex parte Quirin, stating that military jurisdiction was lawful and the trial could continue.' The saboteurs were subsequently found guilty by the military commission-the outcome was never in doubt, largely because of detailed confessions-and they were promptly executed or sentenced to long prison terms. Then for three months, the Supreme Court wrangled internally about how to justify its decision. Ultimately the Court issued a much longer opinion that rejected the government's first argument on access, holding that the saboteurs did have a right to habeas corpus review but, as prefigured by the per curiam, agreed with the government on the merits. Although the decision was generally applauded when issued and later was successfully invoked in Hamdi v. Rumsfeld to justify holding an American citizen captured in Afghanistan after 9/11 in military detention,2 modern scholarly accounts of Quirin by historians and constitutional lawyers have been positively scathing.3 Leading articles call Quirin a "troubling" and even "putrid" precedent and an "institutional defeat" for the Court.4 The conventional account is that a Court beholden to President Roosevelt-he had appointed eight of the nine justices and had close relationships with several-deferred too much to the executive because of wartime pressure and dislike for the saboteurs, and with undue haste blessed an illegal military commission process that executed six men after a quick and 1. Exparte Quirin, 317 U.S. 1, 18-19 (1942). 2. Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) (plurality opinion). 3. See, e.g., Bruce Ackerman, Terrorism and the Constitutional Order, 75 FORDHAM . REV.