Ex parte Quirin (1942): the Supreme Court and the Nazi saboteurs

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The Supreme Court decided this case twice. On 31 July 1942, two days after hearing argument in a special summer session, it issued a short unsigned order: the eight German saboteurs of Operation Pastorius could be tried by the military commission President Roosevelt had created, and their petitions for habeas corpus were denied. The reasons came only on 29 October 1942, in Chief Justice Harlan F. Stone's full opinion¹. By then six of the men had been executed, on 8 August, and the other two were in prison^3,4. The hosted file is the case as printed in volume 317 of the United States Reports, pages 1 to 48: the reporter's syllabus, the lawyers' arguments, the July order and the October opinion¹.

The facts the Court accepted

The opinion's statement of facts is a compact official account of the landings. All eight petitioners were born in Germany, had lived in the United States and had gone back between 1933 and 1941. After the declaration of war they trained at a sabotage school near Berlin in explosives and secret writing. Four, with George Dasch, who was not a petitioner, were landed from a submarine at Amagansett Beach on Long Island on or about 13 June 1942; the other four came ashore at Ponte Vedra Beach, Florida, on or about 17 June. Both groups wore German uniforms or caps, buried them with their explosives, and moved on in civilian clothes. The FBI arrested all of them in New York or Chicago. They carried substantial sums in American money from the German High Command¹. The opinion does not say how they were caught; the FBI's own history credits Dasch's decision to turn himself in³.

Roosevelt's order and proclamation of 2 July 1942 set up the commission and declared that enemy agents entering through coastal defenses were subject to military tribunals and barred from the courts. The Army charged the men with violating the law of war, the 81st and 82nd Articles of War (aiding the enemy and spying) and conspiracy, and the trial began on 8 July¹.

What the Court held

The defense, led by Col. Kenneth C. Royall, argued that civilian courts were open, that Ex parte Milligan (1866) forbade military trial of civilians in such places, and that the beaches were not zones of military operations^1,4. The Court disagreed. It held first that the proclamation could not shut the courts against the question whether the trial was lawful. On the merits, it reasoned that Congress, through the Articles of War, had authorized military commissions to try offenses against the law of war; that enemy combatants who cross the lines out of uniform to destroy life or property are "unlawful combatants" triable by such commissions; and that this was true even of a citizen, which disposed of Herbert Haupt's claim to American citizenship without deciding it. Milligan was distinguished: Milligan had not been an enemy belligerent¹.

The Court decided only the first charge and declined to rule on the others. On the President's procedures, it was unanimous that they gave no ground for release but admitted that the Justices did not agree on the reasons. Justice Frank Murphy took no part¹. The Chief Justice's son had served on the defense team before the commission; all counsel asked Stone to sit anyway, and he did¹.

Reading it

The opinion is careful to "hold only" what the facts required, but it was written to justify a judgment already given and sentences already carried out, and commentators have long debated it for that reason⁴. It is a court record, so its facts are those stipulated or alleged in 1942. For the operation itself and the men's fate, see Operation Pastorius^2,3.