THE HISTORY AND PRECEDENTIAL VALUE OF THE SUPREME COURT CASE CITED IN SUPPORT OF THE BUSH ADMINISTRATION'S MILITARY TRIBUNALS

Until the current flap over President Bush's proposal to try foreign terrorist suspects before special military tribunals, only a handful of national security law specialists and legal history junkies had heard of Ex Parte Quirin- the Supreme Court ruling upholding President Franklin Roosevelt's decision to try eight Nazi saboteurs before a special military court in 1942. But now, of course, it has become a crucial question whether Chief Justice Harlan Stone's opinion for a unanimous Court in Quirin authorizes the military tribunals contemplated in Bush's order.

This issue may be approached from at least two very different angles. Lawyers and law professors, by training and inclination, tend to think about Quirin doctrinally - that is, they analyze the text of the Supreme Court's opinion to assess the extent to which its sanctioning of military tribunals may fairly be applied to the tribunals Bush proposes.

Others, however, including historians, are likely to focus less on the text of the Supreme Court's opinion and its legal rationale, and more likely to examine the context within which the Supreme Court reached its decision and assess how that decision is best viewed in hindsight.

Interestingly, both a doctrinal and an historical analysis raise significant doubts about the legality and wisdom of Bush's tribunal proposal.

The History Behind Quirin: A Result in Search of a Rationale

The Quirin case began on June 27, 1942, when the FBI announced that it had arrested 8 German saboteurs. The saboteurs had landed on American beaches carrying explosives and under orders to blow up U.S. military targets. Within a week, President Roosevelt ordered the saboteurs tried before a secret military tribunal and, by proclamation, denied the defendants access to the civilian courts.

On July 3, the government charged the defendants with violating the laws of war, by appearing behind enemy lines in civilian dress for the purpose of committing espionage or sabotage, and of violating two specific Articles of War.

The trial, which began a few days later, lasted less than three weeks. Before it was even over, the Nazis' appointed defense counsel sought habeas corpus relief, challenging the authority and procedures of the military tribunal.

President Roosevelt did not take kindly to the challenge. Indeed, he told his Attorney General, Francis Biddle, that he had no intention of turning over the saboteurs to civilian authorities, no matter what the federal courts decided.

On July 29, with a potential constitutional crisis - in the form of a conflict between the Executive and the Supreme Court - brewing, and even though the Nazis' trial was still ongoing, Chief Justice Stone convened a special session of the Court to hear argument on the legality of the military tribunal and of the procedures called for in Roosevelt's authorizing proclamation.

Oral argument consumed almost nine hours divided over two days. It left the Justices unanimous in wanting to uphold the validity of the military proceedings, but uncertain about how to do so.

Rather than resolve every issue in detail, after two days of internal deliberation, Chief Justice Stone simply announced that the Court had concluded that the charges against the Nazis were susceptible to trial by a military court, and that this military court was lawfully constituted. In this summary fashion, the saboteurs' petitions for habeas corpus relief were denied.

Stone promised that a full opinion in support of this ruling would follow later. As it turned out, however, Stone (who assumed drafting responsibility for the opinion) found the task of justifying the Court's ruling rather more difficult than he had hoped. But there was no turning back; the result had already been announced. And more significantly, while Stone was fashioning his draft, the government executed six of the saboteurs.

The opinion was not one of which the Court should have been, or likely was, proud. Indeed, Justice Douglas commented when he looked back ruefully on Quirin that "[o]ur experience with [that case] indicated . . .to all of us that it is extremely undesirable to announce a decision on the merits without an opinion accompanying it. Because once the search for the grounds . . .is made, sometimes those grounds crumble."

The Quirin Opinion: Avoiding the Hard Questions

Douglas' criticisms were apt. In the end, the Court issued an opinion that glossed over or avoided many of the hardest legal questions the habeas corpus petitions raised. For example, rather than confront the President's self-proclaimed authority to close civilian courts to the saboteurs, Stone simply interpreted Roosevelt's proclamation as not precluding courts from considering whether the Constitution or other federal law precluded trial by a special military tribunal.

Similarly, the Court dodged the issue of whether the President, on his own authority, had the power to establish the military tribunal at issue. To the extent possible, Stone rested the Court's ratification of the tribunal's authority on the existence of specific congressional authorization for such proceedings.

Moreover, at the urging of Justice Hugo Black, Stone avoided any suggestion that military tribunals could be used to try a broad category of cases. As Black wrote to Stone, "I want to go no further than to declare that these particular defendants are subject to the jurisdiction of a military tribunal because of the circumstances and purposes of their entry into this country as part of the enemy's war forces."

Accordingly, Stone carefully limited the authority of the military tribunals. As the Court held, the jurisdiction of Roosevelt's tribunal appropriately covered the saboteurs only because "the law of war" made them eligible for trial before a military tribunal and only because they were accused of a crime (going behind enemy lines in wartime using civilian dress for the purpose of sabotage) that violated "the law of war."

Does Terrorism Violate the Law of War?

Space does not permit a full discussion of either Quirin's doctrinal application to the current controversy over Bush's proposed tribunals, or the historical lessons of the case. A few salient points stand out, however - and these points alone counsel that we proceed with caution before assuming Quirin settles the question of the constitutionality of the Bush Administration military tribunals.

First, as a doctrinal matter, Quirin does no more than authorize a President to establish military tribunals to hear cases involving violations of the law of war by persons made eligible by the law of war. It is far from clear that foreign terrorists generally, or even Osama Bin Laden himself, would fit within this classification.

Although I do not pretend to be an expert in the field, it is my understanding that the law of war is not a code of conduct for individuals or even organizations not acting under the authority of an recognized government. Rather, it is a code binding nation states and their armed forces.

Accordingly, it is far from clear that the perpetrators of the September 11 attacks have violated the law of war, or are individuals triable under that law in a military tribunal - as Quirin requires. That is because the law of war simply may not pertain to terrorist acts not committed with the support of, or on behalf of, a belligerent nation.

Granted, some have argued that the September 11 attacks obviously violate international law. After all, those laws condemn the deliberate targeting of innocent civilians. They also point out that the scope of the attacks - the cold-blooded murder of nearly 4,000 civilians - surely qualifies them as acts of "war."

But if these are the criteria, it is hard to find a limiting principle for what an act or war is. Could Sacco and Vanzetti have been tried before a military tribunal? Timothy McVeigh? What about Ted Kaczynski? All of these criminals targeted innocent civilians for mass murder as an act of aggression against the values embodied by the United States government.

In short, the "war against terrorism," like the "war against drugs" is an appropriate metaphor for our commitment, including the use of military force, to wipe out a particular scourge. But as a matter of law, the difference between this war and a war between nations cautions against any facile reliance on Quirin as authority for the military tribunals Bush would impose.

Put another way, a Taliban fighter's trial before a tribunal might be authorized by Quirin (assuming the defendant was charged with violating the law of war), but the trial of an alleged al Qaeda collaborator living in the United States - who is a suspect without a sovereign - might not.

The Lessons of History: Why We Need Not Rely on a Hasty and Inevitable Result

An historical perspective on Quirin reinforces its limits as a precedent to be cited in support of the Bush Administration's tribunals. The rush of events put the Court in an impossible position - as even the Justices themselves realized in retrospect. At the darkest hour of a world war in which the liberty of Europe and Asia was all but extinguished, in a case that was not yet over and in which the evidence was sealed even from the Justices, the Court was called upon to stand in the way of a direct order of a President in a case of 8 enemy saboteurs caught red-handed on U.S. soil.

No U.S. court under these circumstances would have conceived of confronting the President and provoking a crisis. And certainly the Supreme Court, at that time, entertained no such thought. This was, after all, the same Court that just a few years later put its stamp on the much more far-reaching and legally dubious concept of Japanese internment.

Whether that Court, in those circumstances, did the right thing is debatable. But right or not, that decision should not dictate what the contemporary Court should do in very different circumstances.

While civil trials of alleged al Qaeda collaborators might be disruptive, they would still be feasible to conduct. (Think back on the 1993 World Trade Center bombing trial, which went smoothly). A war is on, but we appear to be winning it. An Executive Order has been issued, but trials are not yet imminent. There is time and latitude, as there was not time and latitude in Quirin, to reason, to think, to weigh and balance. So Quirin's hasty result, and unsatisfying subsequent rationalization, need not be repeated now.

The real issue should not be whether Bush's proposal is reasonably grounded in an isolated case from World War II. It should be whether such tribunals are a good idea, and a constitutional option.