Amicus Curiae Brief — Hamdan v. Rumsfeld

—

Supreme Court, U.S

JAN 6 ~ 2006

No. 05-184 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

SALIM AHMED HAMDAN,

Petitioner,

v.

DONALD H. RUMSFELD,

SECRETARY OF DEFENSE, et ai.,

Respondents.

On WRIT OF CERTIORARETO THE

UNITED STATES COURT OF APPEALS FOR THE

DisTRICT OF COLUMBIA CIRCUIT

BRIEF OF LEGAL SCHOLARS AND HISTORIANS AS

AMICI CURIAE IN SUPPORT OF PETITIONER

[Effect of Quirin]|

—_—_ Sa

— — SS

DanleEL C. TEPSTEIN

Counsel of Record

STEVEN C. VALERIO

O’DONNELL SHAEFFER Mortimer LLP

550 South Hope Street, Suite 2000

Los Angeles, California 90071

(213) 532-2000

Counsel for Amici Curiae

198789 cr

COUNSEL PRESS |

($00) 274-3321 + (800) 3$9-6859

TABLE OF CONTENTS

Page

TABLE OF CITED AUTHORITIES .............. ii

INTERESTS OF AMICI CURIAE ................ 1

SUMMARY OF THE ARGUMENT .............. 2

ET .cuwas ths in ed nddhe eh aeeharesiedae 3

I THE HISTORIAL CIRCUMSTANCES

SURROUNDING QUIRIN’S ISSUANCE

DEMONSTRATE ITS INCOMPATIBILITY

WITH A MODERN SENSE OF JUSTICE ... 3

A. The Historical Background of Quirin

PPE OL SOL PO FO Pe Pye re 3

B. Biases, Conflicts of Interest, Undue

Executive Influence, Haste, and Lack of

Authority Infected the Court's Decision

SOE chuasViduehauealaceusdaees 6

S;. cutavodaceveeus cate 7

< 2 Qe SE NE 5. «0c ce vccccss 9

3. Presidential Intimidation ........ 11

GC Teme OP NN . w cc scenes: 11

5. Lack of Reliable Authority ....... 12

C. Quirin is a Poisoned Precedent ....... 15

Il. QUIRINSHOULD BE REPUDIATED ..... 18

ET ss dg 044-2045 cde uaneonnd cctsacen 19

i

TABLE OF CITED AUTHORITIES

CASES des

Burnet v. Coronado Oil & Gas, 285 U.S. 393 (1932) .. 7

Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) ....... 3, 16

Ex parte Quirin, 317 U.S. 1 (1942) ............... passim

Ex parte Quirin, 47 F. Supp. 431 (D.D.C. 1942) .... 15

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ........... 16-17

Hertz v. Woodman, 218 U.S. 205 (1910) ........... 7

In re Yamashita, 327 U.S. 1 (1946) . | eaveth eh enere 15, 18

Patterson v. McClean Credit Union, 491 U.S. 164 (1989)

BPO TPP OP TE PCP eT ETT Oe Pe eT er ne 7,16

Payne v. Tennessee, 501 U.S. 808 (1991) ........... 7,19

Planned Parenthood v. Casey, 505 U.S. 833 (1992) ... 7

The Passenger Cases, 48 U.S. (7 How.) 283 (1849) ... 7

STATUTES

Act of June 4, 1920, ch. 227; 41 Stat. 759,790 ...... 14

REGULATIONS

Detention, Treatment, and Trial of Certain Non-Citizens

in the War Against Terrorism, 66 Fed. Reg. 57,833

SA ED 66 6 ee Sa we vA Seovicteeiens cs 2

Cited Authorities

Page

OTHER

M. Cherif Bassiouni, From Versailles to Rwanda in

Seventy-Five Years: The Need to Establish a

Permanent International Criminal Court, 10 Harv.

8 ER, Pr rer tS Terr are 18

Michal R. Belknap, Alarm Bells from the Past: The

Troubling History of American Military

Commissions, 28 J. Sup. Ct. Hist. 300 (2003) ...... 3

Michal R. Beiknap, A Putrid Pedigree: The Bush

Administration’s Military Tribunals in Historical

Perspective, 38 Cal. W. L. Rev. 433 (2002) ...... 3, 8, 19

Michal R. Belknap, Frankfurter and the Nazi Saboteurs,

1982 Y.B. Sup. Ct. Hist. Soc’y 66 (1982) ..... 6, 8, 9, 13

Michal R. Belknap, The Supreme Court Goes to War:

The Meaning and Implication of the Nazi Saboteur

Case, 89 Mil. L. Rev. 59 (1980) ............ 1, 3, 15, 16

Cyrus Bernstein, The Saboteur Trial: A Case History,

1 Geo. Wash. L. Rev. 131 (1943) .............. 4

Boris I. Bittker, The World War II German Saboteurs’

Case and Writs of Certiorari Before Judgment by the.

Court of Appeals: A Tale of Nunc Pro Tunc

Jurisdiction, 14 Const. Comment 431 (1997) ..... 8

A. Christopher Bryant and Carl Tobias, Symposium

Issue: Civil Liberties in a Time of Terror: Article:

Quirin Revisited, 2003 Wis. L. Rev. 309 (2003) ... 13, 17

1v

Cited Authorities

Page

James F. Byrnes, All in One Lifetime (Harper & Bros.

| BT ee 10

Edward S. Corwin, Total War and the Constitution

(AlseG A. TGGE TOG? «sox cucercbacucesenel 3,15

David J. Danelski, The Saboteurs’ Case, J. Sup. Ct.

PEt. GE GRUOED 6 ve vc ccsdivencs esvauuannnel passim

Louis Fisher, Military Tribunals & Presidential Power:

American Revolution to the War on Terror (Univ.

FURS GF AGN BUOEE 00.650 0kcnenivedny 3, 13, 14, 16

Louis Fisher, Nazi Saboteurs on Trial: A Military

Tribunal & American Law (Univ. Press of Kansas

BOOED vcdcceccecintuswedesssess eee 3,9,12

Maj. Guy P. Glazier, He Called for His Pipe and He

Called for His Bowl, and He Called for His Members

Three — Selection of Military Juries by the Sovereign:

Impediment To Military Justice, 157 Mil. L. Rev. 1,

TPP CGO ss cncssncncescsecessuceuheeeae 17

George Lardner, Jr., Nazi Saboteurs Captured! FDR

Orders Secret Tribunals; 1942 Precedent Invoked by

Bush Against al Qaeda, Wash. Post, at W12

XS BS Pe ee 16-17

Charles I. Lugosi, Rule of Law or Rule by Law: The

Detention of Yaser Hamdi, 30 Am. J. Crim. L. 225

GRUP oc cacccctevesascvahedesennekaeteinee 19

Cited Authorities

Page

Alpheus T. Mason, Inter Arma Silent Leges: Chief

Justice Stone’s Views, 69 Harv. L. Rev. 806 (1956)

CPP CERCER See ER ONGSe eee erecceccececs 6, 12, 17

Pierce O'Donnell, In Time of War: Hitler's Terrorist

Attack on America (The New Press 2005) ....... passim

Fred Pasley, Spies Challenge Jurisdiction of Court

Chosen by Roosevelt, N.Y. Daily News, (undated)

(cited in Jack Betts, The Trials of War, Carolina

Alum. Rev. 32, 37 (March-April 2002)) ........ 11

Stephen I. Vladeck, Note: The Detention Power,

22 Yale L. & Pol’y Rev. 153 (2004) ............ 17

G. Edward White, Felix Frankfurter’s “Soliloquy” in

Ex parte Quirin: Nazi Sabotage & Constitutional

Conundrums, 5 Green Bag 2d 423 (2002) ....... 9,17

Harlington Wood, Jr., Judge’s Forum No. 2: “Real

Judges,” 587 N.Y.U. Ann. Surv. Am. L. 259 (2001)

1

INTERESTS OF AMICI CURIAE'

This amicus curiae brief in support of petitioner is

submitted pursuant to Rule 37 of the Rules of this Court with

the written consent of both petitioner and respondent, whose

consent letters have been filed with the Clerk of the Court.

Amici are legal scholars and historians— Michal R.

Belknap, David J. Danelski, Peter Irons, and Pierce

O’Donnell — each of whom has studied, written, and published

on the Court's decision in Ex parte Quirin, 317 U.S. 1 (1942).

Writing to provide the Court an historical account of the factual

circumstances surrounding the decision in Quirin, amici

maintain that Quirin was an institutional defeat for the Court

that should be repudiated.

Michal R. Belknap, Professor of Law at California Western

School of Law and Adjunct Professor of History at the

University of California, San Diego, is a constitutional and

legal historian who has published numerous scholarly works

on legal history and related topics, including several leading

works examining Quirin. Among those works is The Supreme

Court Goes to War, The Meaning and Implications of the Nazi

Saboteur Case, 89 Mil. L. Rev. 59, 87 (1980), the first historical

analysis of the case.

David J. Danelski, a lawyer, political scientist, and former

Navy JAG officer, is the Mary Lou & George Boone Centennial

Professor Emeritus at Stanford University. Professor Danelski

has published numerous works on constitutional law, legal

history, and the Supreme Court, including a leading article

on Quirin entitled, The Saboteurs’ Case, }. Sup. Ct. Hist. 61 (1996),

for which he received the Hughes-Gossett Award for

Historical Excellence from The Supreme Court Historical

Society.

Peter Irons, a practicing attorney, is Professor of Political

Science and Director of the Earl Warren Bill of Rights Project

at the University of California, San Diego. Professor Lrons is

the author of thirteen books on the Supreme Court and

1. Nocounsel for a party authored this brief in whole or in part, and

No person or entity other thanamici curiae or their counsel made a monetary

contribution to the preparation or submission of this brief.

2

constitutional litigation, including War Powers: How the Imperial

Presidency Hijacked the Constitution (Metropolitan Books 2005).

He has served as lead counsel in the successful effort to reverse

the convictions of Japanese-Americans who challenged the

curfew and relocation orders issued during World War II.

Pierce O'Donnell is an author and trial lawyer who has

been named one of the “100 Most Influential Lawyers in

America” by the National Law Journal. A former law clerk for

Supreme Court Justice Byron R. White and Ninth Circuit Judge

Shirley M. Hufstedler, Mr. O’Donnell has authored the most

comprehensive work to date related to the German Saboteurs’s

Case in his recent book, In Time of War: Hitler’s Terrorist Attack

on America (The New Press 2005).

The instant case raises squarely the question of Quirin’s

continued viability. It is of particular interest to amici because

of the reliance on Quirin by both the court of appeals and the

government to support the exercise of presidential power —

specifically, the President's unilateral creation of military

commissions to bypass trials by courts-martial under the

authority of the Judge Advocate General.

SUMMARY OF THE ARGUMENT

Finding that Quirin affords a legitimate basis for the

president's power to order trials by military commission in

the War Against Terrorism,’ the court of appeals sanctioned a

precedent tainted by improper bias, conflicts of interest, undue

executive influence, judicial haste, and lack of authority. Six

men were put to death in Quirin despite the Court's now well-

documented concerns about the validity of executive authority

to establish the military commission that ordered their

executions. This Court should overturn Quirin as an

illegitimate precedent that offends this nation’s modern sense

of justice. With the slate clean, the Court then can decide the

merits of petitioner's challenge to this modern-day military

commission free of the spectre of Quirin.

2. President Bush's order can be found at Detention, Treatment, and

Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833

(Nov. 13, 2001). ;

3

ARGUMENT

I. THE HISTORIAL CIRCUMSTANCES SURROUNDING

QUIRIN’S ISSUANCE DEMONSTRATE ITS INCOM-

PATIBILITY WITH A MODERN SENSE OF JUSTICE

A. The Historical Background of Quirin

In the summer of 1942, during World War IIL, eight German

saboteurs landed on the beaches of Long Island and Florida.

Arriving by U-boats in military uniforms and then changing

into civilian disguise, they were well funded by the German

government and armed with crates of explosives. Shortly after

their arrival, one saboteur-turned-informant notified the

Federal Bureau of Investigation of their arrival and plans. Over

the next two weeks, the FBI captured all eight saboteurs — and

so began the saga of Quirin. See Edward S. Corwin, Total War

and the Constitution 117 (Alfred A. Knopf 1947).

The capture presented President Franklin D. Roosevelt

with the difficult question of how to prosecute the saboteurs.

The FBI had captured the saboteurs on American soil at a time

when the civilian courts were open —a critical point under the

Articles of War and Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).

Nevertheless, his advisors believed that the civil courts could

not mete out sufficiently harsh sentences for the saboteurs’s

acts. See David J. Danelski, The Saboteurs’ Case, 1 J. Sup. Ct.

Hist. 61, 65-66 (1996).° Roosevelt wanted the saboteurs

3. In reciting the factual background of Quirin, amici rely primarily

on Professor Danelski’s historical account. See David J. Danelski, The

Saboteurs’ Case, supra, at 65-66. The history of Quirin has been researched

extensively and recounted in numerous works. See, e.g., Michal R. Belknap,

Alarm Bells from the Past: The Troubling History of American Military

Commissions, 28 J. Sup. Ct. Hist. 300 (2003); Michal R. Belknap, A Putrid

Pedigree: The Bush Administration's Military Tribunals in Historical Perspective,

38 Cal. W. L. Rev. 433 (2002); Michal R. Belknap, The Supreme Court Goes to

War: The Meaning and Implication of the Nazi Saboteur Case, 89 Mil. L. Rev.

59, 87 (1980); Pierce O'Donnell, In Time of War: Hitler's Terrorist Attack on

America (The New Press 2005); Corwin, supra, 117-27; Louis Fisher, Nazi

Saboteurs on Trial: A Military Tribunal & American Law (Univ. Press of Kansas

2003); Louis Fisher, Military Tribunals & Presidential Power: American

Revolution to the War on Terror 91-129 (Univ. Press of Kansas 2005).

4

executed, which his advisors believed could be accomplished

only by a military trial. Jd.‘ Within a week, without

congressional authority, President Roosevelt denied the

saboteurs access to the civil courts, ordering their prosecution

before a military commission of seven retired generals and

authorizing that commission to impose a penalty of death.

Id. at 67.° Despite a provision in the preamble of the Articles

of War making them applicable to the armies of the United

States at all times and all places, the presidential order

departed from the Articles of War by permitting the admission

of hearsay evidence in the trial, by reducing the number of

votes necessary to convict on charges for which the death

penalty was authorized, and by changing the review

procedure in death-penalty cases. Id. Insum, the government

had stacked the deck to facilitate the conviction and execution

of the alleged saboteurs. Id.

A three-week trial of the saboteurs began on July 6, 1942,

before Roosevelt's appointed military commission. Id. at 67-

68, 71. The Attorney General, Francis B. Biddle, served as chief

prosecutor for the government. President Roosevelt appointed

Colonel Kenneth C. Royall to serve as chief defense counsel

representing seven of the saboteurs and Colonel Cassius M.

Dowell as his co-counsel. Id. at 67. Colonel Carl L. Ristine

served as defense counsel for the eighth — the FBI's informant,

George John Dasch. Id. During trial, Colonels Royall and

4. That was also the position of General George Strong, Secretary of

War Henry L. Stimson’s chief of intelligence. Stong advised Stimson in a

memorandum, dated June 28, 1942, that “the prompt trial and execution”

of the saboteurs was necessary as a deterrent and that the trial should be

by military commission even though martial law had not been declared

and the civil courts were open. “The exigencies of the present situation,”

he added, “appear to demand drastic action without too much deference

to technical rights which might be accorded, under the Constitution, to

enemy aliens coming to our shores with the admitted intention of crippling

our defense effort and with training and means adequate to accomplish

that end.” Record Group 165, NARA, Military Intelligence Service.

5. One of the notable constitutional issues presented by President

Roosevelt's order was that it served, in effect, as an ex post facto law. For a

discussion of that issue, see Cyrus Bernstein, The Saboteur Trial: A Case

History, 1 Geo. Wash. L. Rev. 131, 157 (1943).

5

Dowell sought to devise a strategy to bring a constitutional

challenge to the military proceedings. Id. at 68. On July 22, in

contravention of orders from President Roosevelt, Colonel

Royall, in an act of conscience, informed the military

commission of his plan to initiate habeas corpus proceedings

on behalf of the saboteurs in federal court. /d.; O’Donnell,

In Time of War, supra, at 177-80.

The next day, on July 23, Colonels Royall and Dowell,

Attorney General Biddle, and Judge Advocate General Myron

C. Cramer, met in person with Justices Owen Roberts and

Hugo Black to discuss the Supreme Court's willingness to hear

the case. Danelski, The Saboteurs’ Case, supra, at 68. On July 27,

the Court publicly announced that it would convene a special

session to hear the matter on July 29. Id. The saboteurs filed

petitions for writs of habeas corpus in the United States District

Court for the District of Columbia on July 28, 1942. Ex parte

Quirin, 47 F. Supp. 431 (D.D.C. 1942). The district court

summarily and immediately denied the petitions. Id.

The Supreme Court heard argument and received briefs

exceeding 180 pages the very next day. Danelski, The Saboteurs’

Case, supra, at 68. Over two days, the Court heard nearly nine

hours of oral argument before returning to conference on

July 30. Id. at 71. At noon on July 31, the Court denied the

petitions in a per curiam order and announced that it would

later file a full opinion addressing the merits. Id.; Quirin, 317

U.S. at 18-19, unnumbered note. In its one-page order, the

Court summarily decided that (i) the President was authorized

to order the trial before a military commission; (ii) the

commission was lawfully constituted; and (iii) the saboteurs

were held in lawful custody for trial before the commission.

Quirin, 317 U.S. at 18-19.

Following the Court's denial of habeas corpus relief, trial

resumed before the commission and quickly concluded.

Danelski, The Saboteurs’ Case, supra, at 71. The parties gave

closing arguments on August 1, and, two days later, the

Commission found all defendants guilty of all charges,

recommending to President Roosevelt death by electrocution.

Id. at 71. The commission forwarded the transcript to President

6

Roosevelt for review along with a recommendation that the

death sentences of Dasch and another saboteur who had also

assisted the FBI be commuted to life imprisonment. Id. at 71-

72. The White House announced its approval of the

commission's decision on August 8. Id. at 72. The only

modifications to the commission’s judgment included

commutation of Dasch’s sentence to 30 years imprisonment

and that of the other cooperating saboteur to life

imprisonment. Id. The government began the executions at

noon that day and electrocuted the six saboteurs in a little

over an hour. /d.; O'Donnell, In Time of War, supra, at 248-49.

Having issued only a per curiam order at the time of the

executions, Chief Justice Stone assigned himself to write the

Court's full opinion. Danelski, The Saboteurs’ Case, supra, at

72. Nearly three months passed before the Court issued an

opinion explaining its reasons for denying habeas corpus relief.

Quirin, 317 U.S. 1 (full opinion filed October 29, 1942). During

that time, the Justices struggled to find common ground.

See, e.g., Michal R. Belknap, Frankfurter and the Nazi Saboteurs,

1982 Y.B. Sup. Ct. Hist. Soc’y 66, 68 (1982). The Chief Justice

described his effort to secure a unanimous opinion as

“a mortification of the flesh.” See, e.g. Alpheus T. Mason, Inter

Arma Silent Leges: Chief Justice Stone's Views, 69 Harv. L. Rev.

806, 820-21 (1956) (citing Letter from Harlan Fiske Stone to

Roger Nelson (Sept. 20, 1942), Harlan Fiske Stone Papers, Box

69 (on file with the Manuscript Room, Library of Congress)).

The extraordinary procedural history underpinning the

Court's decision in Quirin does not, however, tell even half of

the story. In the more than 60 years since the Court issued

Quirin, legal historians have uncovered a wealth of

information casting grave doubt on Quirin’s precedential

value.

B. Biases, Conflicts of Interest, Undue Executive Influence,

Haste, and Lack of Authority Infected the Court's

Decision in Quirin

“The rule of stare decisis, though one tending to consistency

and uniformity of decision, is not inflexible. Whether it shall

be followed or departed from is a question entirely within the

7

discretion of the court... .” Hertz v. Woodman, 218 U.S. 205,

212 (1910). The Court should not be constrained by precedent

if it believes the issue was wrongly decided; and where an

opinion “significantly harms our criminal system and is

egregiously wrong,” the Court should repudiate it without

requiring any “special justification.” Payne v. Tennessee, 501

U.S. 808, 834 (1991) (Scalia, J., concurring). The facts unearthed

after Quirin’s issuance offer compelling considerations for its

repudiation. See Patterson v. McClean Credit Union, 491 US.

164, 174 (1989) (recognizing precedent may be vulnerable

where it “has been found inconsistent with the sense of justice

or with the social welfare” ) (citations omitted); see also Planned

Parenthood v. Casey, 505 U.S. 833, 855 (1992) (the Court properly

considers “whether facts have so changed, or come to be seen

so differently, as to have robbed the old rule of significant

application or justification”); Burnet v. Coronado Oil & Gas, 285

U.S. 393, 412 (1932) (Brandeis, J., dissenting)

In cases involving constitutional issues. . . , this Court

must, in order to reach sound conclusions, feel free

to bring its opinions into agreement with experience

and with facts newly ascertained, so that its judiciai

authority may, as Mr. Chief Justice Taney said,

“depend altogether on the force of the reasoning by

which it is supported.”

(quoting The Passenger Cases, 48 U.S. (7 How.) 283, 470 (1849)).

Historians, including amici, have concluded uniformly that

external and internal influences surrounding Quirin so

undermine the very foundation of the opinion that it should

be repudiated.

1. Judicial Bias

In the summer of 1942 when the FBI captured the eight

German saboteurs before accomplishing their mission, the

American public embraced the news as a great military victory.

O’Donnell, In Time of War, supra, at 104; Danelski, The Saboteurs’

Case, supra, at 65. At the time, Nazi forces occupied most of

Europe; Russia was reeling under a savage German assault;

Nazi tanks were ravaging North Africa; and Great Britain

stood precariously alone. O'Donnell, In Time of War, supra, at

8

10, 19. German U-boats patrolling the Atlantic were sinking

thousands of tons of shipping, including U.S. and Allied ships,

within sight of observers on the shores of the Atlantic Coast

and in the Caribbean. /d. at 10. Japan had destroyed Pearl

Harbor just months earlier, and Japanese forces extended a

vast perimeter of conquest over the Pacific. Id. at 10-11, 19. As

anxiety about the war took hold of the popular consciousness,

America looked alarmingly vulnerable. /d. at 19.

The members of the Court at that time—like the rest of ©

America — strongly supported the war effort. See Danelski, The

Saboteurs’ Case, supra, at 71 (citing Frankfurter, Conference

Notes in Saboteurs’ Case (July 30, 1942), Felix Frankfurter

Papers, Paige Box 12 (on file with the Manuscript Division,

Harvard Law School)) (during conference in Quirin Chief

Justice Stone said that the petitioners were “enemies regardless

of citizenship” and entitled only to “executive justice”);

see also Belknap, A Putrid Pedigree, supra, at 475.° Justice Felix

Frankfurter’s papers provide the most disturbing display of

judicial bias against the saboteurs. Justice Frankfurter saw the

war against Hitler as “a war to save civilization itself from

submergence.” See Belknap, A Putrid Pedigree, supra, at 476. In

one of history’s most troubling instances of judicial prejudice,

Justice Frankfurter ~ seeking to persuade reluctant justices to

join the Chief Justice’s opinion— wrote to his colleagues the

“F.F. Soliloquy,” a fictional dialogue between Justice

Frankfurter and the German saboteurs who sought writ relief.

“F.F. Soliloquy,” Hugo LaFayette Black Papers 1883-1976, Box

269 (on file with the Manuscript Division, Library of Congress),

reprinted in Belknap, Frankfurter and the Nazi Saboteurs, supra,

at 66.

6. Professor Boris I. Bittker, a young lawyer in 1942 who assisted

Colonel Royall with the petitions for certiorari, wrote about his perception

of the national importance of the case to the war effort. “ According to gossip

in the corridors of the Justice Department, the White House hoped that the

drama of a military trial would help to convince the public that we were

really at war, and to end the civilian complacency that prevailed even in

1942.” Boris |. Bittker, The World War Il German Saboteurs’ Case and Writs of

Certiorari Before Judgment by the Court of Appeals: A Tale of Nunc Pro Tunc

Jurisdiction, 14 Const. Comment. 431, 434 (1997).

9

The F.F. Soliloquy revealed a Justice openly hostile to the

accused and “manifestly unwilling to afford them any

procedural safeguards.” See Belknap, Frankfurter and the Nazi

Saboteurs, supra, at 66. Justice Frankfurter intemperately labeled

the Germans as “damned scoundrels” who had a

“helluvacheek” seeking writ relief, admonishing them:

“You've done enough mischief already without leaving the

seeds of a bitter conflict involving the President, the courts

and Congress after your bodies will be rotting in lime.” Id. at

69. According to Justice Frankfurter, the petitioners were “just

low-down, ordinary, enemy spies who, as enemy soldiers,

have invaded our country and therefore could immediately

have been shot by the military when caught in the act of

invasion.” Id. After concluding that “for you there are no

procedural rights,” “F.F” ends his venomous dialogue by

telling the saboteurs, “you will remain in your present

company and be damned.” /d. at 70.

The intemperate F.F. Soliloquy demonstrates that Justice

Frankfurter “cared far more that these enemies be punished

quickly than that they be tried fairly.” Id. at 66. As well, it

showed that his sense of patriotism and support for the

Roosevelt war effort trumped all constitutional concerns.

See Fisher, Nazi Saboteurs on Trial, supra, at 120. Rather than

communicating substantive, merits-driven comments to his

fellow Court members, Justice Frankfurter injected his own

personal biases and “imprecations to his fellow justices not to

become involved in sticky constitutional issues that might

generate divisiveness amongst themselves.” G. Edward White,

Felix Frankfurter’s “Soliloquy” in Ex parte Quirin: Nazi Sabotage

& Constitutional Conundrums, 5 Green Bag 2d 423, 435 (2002).

2. Conflicts of Interest

Compounding his biases, Justice Frankfurter was

entangled in a disqualifying conflict of interest due to his

extensive contacts with the Roosevelt Administration. Justice

Frankfurter was one of President Roosevelt's closest confidants

while a professor at Harvard Law School, continuing to advise

the Administration even after his appointment to the Court.

O’Donnell, In Time of War, supra, at 199. More problematic,

10

Justice Frankfurter secretly advised the Roosevelt

Administration specifically about its military commission for

the saboteurs and how to structure it in anticipation of a

Supreme Court challenge. Danelski, The Saboteurs’ Case, supra,

at 66 (citing Diary of Henry L. Stimson (June 29, 1942) (on file

with Microfilm, Library of Congress)). Despite these ex parte

conversations with the Administration, and the resulting

conflict directly related to the case before the Court, Justice

Frankfurter did not recuse himself.

Justice Frankfurter was not alone. Justices Frank Murphy

and James F. Byrnes also had disqualifying conflicts. Justice

Murphy was an active reserve army officer at the time,

appearing in uniform during conference on July 29, 1942.

Danelski, The Saboteurs’ Case, supra, at 69. Eventually

recognizing the appearance of impropriety raised, Justice

Murphy reluctantly recused himself from Quirin just before

the Court began hearing oral argument.’ Id. Justice James F.

Byrnes, like Justice Frankfurter, however, did not.

Justice Byrnes “had been a de facto member of the

[Roosevelt] administration for the past seven months, working

closely with both Biddle and F.D.R. in the war effort.”

Danelski, The Saboteurs’ Case, supra, at 69 (citing Letter from

Biddle to Byrnes (Jan. 14, 1942), James F. Byrnes Papers, Box

1230 (on file with the Robert Muldrow Library, Clemson

Univ.)). He offered advice on a range of issues, including draft

executive orders, war powers legislation, and other

presidential initiatives. O'Donnell, In Time of War, supra, at

213 (citing James F. Byrnes, All in One Lifetime 148-54 (Harper

& Bros. 1958)). Justice Byrnes was so intimately involved in

the day-to-day functioning of the government that he arranged

for the introduction—and lobbied legislative leaders for

support — of administration bills. Id. Indeed, his involvement

was So extensive that Attorney General Biddle actually thought

Justice Byrnes was on a leave of absence from the Court from

December 1941 to October 1942. Danelski, The Saboteurs’ Case,

7. During oral argument in Quirin, Justice Murphy, in his Army

uniform, listened behind the curtain immediately behind the justices on

the bench. O’Donnell, In Time of War, supra, at 214.

11

supra, at 69. Despite this relationship, Justice Byrnes

participated in deciding the case.

3. Presidential Intimidation

In this environment laden with bias and conflict, President

Roosevelt leveraged his executive power with credible threats

to undermine the authority of the Court. As the New York Daily

News reported at the time, the significance of the question

before the Court in Quirin was that “it pit[] the authority of

the Supreme Court directly against that of the President.” Fred

Pasley, Spies Challenge Jurisdiction of Court Chosen by Roosevelt,

N.Y. Daily News, (undated) (cited in Jack Betts, The Trials of

War, Carolina Alum. Rev. 32, 37 (March-April 2002)). In that

high stakes context, President Roosevelt made it clear to the

Court through unilateral ex parte communications that he

would assert the supremacy of his authority regardless of the

Court's position. O’Donnell, In Time of War, supra, at 213.

Specifically, several private communications from the

Roosevelt Administration to the Justices reveal that the

President expected—indeed, demanded — unanimous

approval of the exercise of his war powers. In the Court's

private chambers, immediately before hearing arguments in

Quirin, Justice Roberts reported to his colleagues that Attorney

General Biddle had expressed concerns that Roosevelt would

execute the Germans no matter what the Court did. /d.;

Danelski, The Saboteurs’ Case, supra, at 69. Justice Roberts added

that he believed FDR intended to have all eight men shot if

they did not acknowledge his authority. O’Donnell, In Time of

War, supra, at 213. The implication of President Roosevelt's

threat would cause undeniable damage to the authority and

sovereignty of the Court—a point not lost on Chief Justice

Stone who replied, “[t]hat would be a dreadful thing.” Id.;

Danelski, The Saboteurs’ Case, supra, at 69.

4. Rush to Judgment

With these internal and external influences roiling beneath

the surface, the Court agreed to hear the saboteurs’s petitions.

The three-day process clearing the path for execution was, and

with Quirin’s exception still is, unprecedented. The parties

12

submitted their briefs to the Court on July 29, 1942, and

arguments were heard that very day without the benefit of

reading the briefs beforehand. O’Donnell, In Time of War, supra,

at 264 Then, less than twenty-four hours after the conclusion

of the two-day arguments, the Court, with virtually no

collective deliberation, denied writ relief in its cursory

per curiam order. Id.

The Court's haste in issuing its per curiam order before

reaching a full decision addressing the merits proved vexing

to several members of the Quirin Court, their law clerks,

historians, and other scholars. In a 1962 interview, Justice

Douglas recounted, “Our experience with [Quirin] 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.” Danelski, The Saboteurs’ Case, supra,

at 80 (citing Transcription of Interviews of William O. Douglas,

by Walter F. Murphy, at 204-05 (on file with Seeley G. Mudd

Manuscript Library, Princeton Univ.)).

Several years after Quirin was decided, John P. Frank,

Justice Black’s law clerk in the summer of 1942, wrote that

Quirin was an “instance[] of haste [where] the Court ha[d]

allowed itself to be stampeded” by the executive branch. John

P. Frank, Marble Palace 249 (Alfred A. Knopf 1958). Frank

further wrote of the decision: “ [I]f the judges are to run a court

of law and not a butcher shop, the reasons for killing a man

should be expressed before he is dead; otherwise the

proceedings are purely military and not for [the] courts at all.”

Id. at 250.

5. Lack of Reliable Authority

As Chief Justice Stone drafted the full opinion, he

expressed doubts about the government's position and

confided in his clerk that he believed that “the President's

order probably conflicts with the Articles of War.” Mason, Inter

Arma Silent Leges, supra, at 822 (citing Letter from Harlan Fiske

Stone to Bennett Boskey (undated), Harlan Fiske Stone Papers,

supra). He even considered, after the executions, holding in

favor of the petitioners. O’Donnell, In Time of War, supra, at

13

255. The fact of the matter is that “counsel for the saboteurs

had a more persuasive argument. . . .” Belknap, Frankfurter and

the Nazi Saboteurs, supra, at 68.° Ultimately, Chief Justice Stone

could not admit this in the opinion since it would be

tantamount to a concession that the Court allowed six men to

be executed illegally. Fisher, Nazi Saboteurs on Trial, supra, at

111-12 (citing “Memorandum re Saboteur Cases,” at 1-2 (Sept.

25, 1942), Harlan Fiske Stone Papers, Box 69, supra) (if the full

opinion confessed error, the Chief Justice realized that this

“would leave the present Court in the unenviable position of

having stood by and allowed six men to go to their death”).

Instead, the Chief Justice pressed his law clerks to justify

the Court's per curiam order. See Mason, Inter Arma Silent Leges,

supra, at 820-21; see also A. Christopher Bryant and Carl Tobias,

Symposium Issue: Civil Liberties in a Time of Terror: Article: Quirin

Revisited, 2003 Wis. L. Rev. 309, 323 (2003) (citing Letter from

Harlan Fiske Stone to Bennett Boskey (Aug. 9, 1942), Harlan

Fiske Stone Papers, supra) (noting that Chief Justice Stone’s

clerks found “‘little authority’ for this justification while Stone

could only cite analogous cases at numerous crucial points in

the draft and even formulated alternative versions of its last

segment”). In drafting the full opinion, Chief Justice Stone was

keenly aware that the judiciary was “in danger of becoming

part of an executive juggernaut.” Mason, Inter Arma Silent

Leges, supra, at 831.

Even Justice Frankfurter later had misgivings about its

legal validity. Shortly after the Court issued the full opinion

in October 1942, Justice Frankfurter commissioned an analysis

of the opinion by a military justice expert, Frederick Bernays

Wiener. Fisher, Military Tribunals & Presidential Power, supra,

at 121. In three successive analyses, Wiener found serious

constitutional problems with the Court's decision. Jd. Notably,

Weiner criticized the Court for creating “a good deal of

confusion as to the proper scope of the Articles of War insofar

8. Colonel Royall’s written and oral arguments in the Supreme Court

were considered superior to those advanced by the Justice Department.

Chief Justice Stone remarked, “I hope the military is better equipped to

fight the war than it is to fight its legal battles.” O’ Donnell, In Time of War,

supra, at 255.

14

as they relate to military commissions.” Id. “Weaknesses in

the decision flowed ‘in large measure’ from the

administration's disregard for ‘almost every precedent in the

books’ when it established the military tribunal.” Id.

Wiener’s severest criticism of Quirin concerned Chief

Justice Stone’s interpretation of Article of War 15, which

provided:

The provisions of these articles conferring jurisdiction

upon courts-martial shall not be construed as

depriving military commissions, provost courts, or

other military tribunals of concurrent jurisdiction in

respect of offenders or offenses that by statute or by

the law of war may be triable by such military

commissions, provost courts, or other military

tribunals.

Act of June 4, 1920, ch. 227, 41 Stat. 759, 790.

Without citing reliable authority, Chief Justice Stone

asserted that Congress's purpose in enacting Article 15 was

to incorporate by reference the rules of the law of war. Wiener

disagreed. In a letter to Justice Frankfurter, Wiener quoted

Brigadier General Enoch H. Crowder’s testimony to Congress

in 1916 concerning Article 15’s purpose: “It just saves to these

war courts [including military commissions] the jurisdiction

they now have and makes it a concurrent jurisdiction with

courts-martial, so that the military commander in the field in

time of war will be at liberty to employ either form of court

that happens to be convenient.” Letter from Wiener to

Frankfurter (Aug. 1, 1943), Felix Frankfurter Papers, Paige Box

12, supra; see also Danelski, The Saboteurs’ Case, supra, at 73, 79;

Fisher, Nazi Saboteurs on Trial, supra, at 133. In other words,

Congress had no affirmative legislation in mind when it

enacted Article of War 15.

Because he did not take Article of War 15’s legislative

history into account, Chief Justice Stone misinterpreted the

provision. That was a serious error. In Chief Justice Stone's

approach to justify the result in Quirin, it was essential that

15

Congress had adopted the rules of the law of war. If that

proposition was false, the government, in his analysis, could

not prevail. See, Danelski, The Saboteurs’ Case, supra, at 72-73.

Wiener remained critical of Quirin for the rest of his life.

In discussing In re Yamashita, 327 U.S. 1 (1946), in 1987, he said

this about Quirin:

The Court followed the Quirin case [317 U.S. 1] and

the point principally raised against MacArthur was

that he had abandoned the rules of evidence. The

reason why he had abandoned the rules of evidence

was because in the Quirin case everything hinged on

the hearsay statements of co-conspirators and those

couldn't be used against other conspirators. In the

Quirin case the Court overlooked the preamble of the

1920 Articles of War, the substance of which was that

these articles shall at all times and in all places govern

the armies of the United States. That was essentially

overlooked in the Quirin case and necessarily by the

Court in the Yamashita case.

Frederick Bernays Wiener, Oral History 92-93 (1987) (on file

at the library of The Judge Advocates General's School,

Charlottsville, VA).

The foregoing indicates that the Court in Quirin not only

lacked authority to justify the case’s result, but it overlooked

authority that supported a contrary result.

C. Quirin is a Poisoned Precedent

The Court's full opinion in Quirin, written and filed after

the executions, was quite simply an attempt to justify a fait

accompli. It was a “dubious decision,” not an intellectually

honest elucidation of the law. Belknap, The Supreme Court Goes

to War: The Meaning and Implication of the Nazi Saboteur Case,

supra, at 87; O’Donnell, In Time of War, supra, at 262.

By necessity, the Court attempted to rationalize its prior per

curiam order, rendering the final opinion one justly criticized

as “little more than a ceremonious detour to a predetermined

goal.” Corwin, supra, at 118. In the end, Quirin should be

16

regarded as “more [of] a political act than a judicial decision.”

O'Donnell, In Time of War, supra, at 262.°

The facts ascertained by legal historians and scholars such

as amici following the Quirin decision demonstrate that Quirin

offends our modern sense of justice. Patterson, 491 U.S. at 174.

The passage of time and change in socio-cultural attitudes,

even attitudes held in times of national crisis, highlight Quirin’s

nettlesome foundation. As Professor Danelski wrote, Quirin

“is a fascinating tale of intrigue, betrayal, and propaganda; a

prosecution designed to obtain the death penalty; questions

of judicial disqualification; a rush to judgment; an agonizing

effort to justify a fait accompli; negotiation, compromise, and

even an appeal to patriotism in an effort ‘o achieve a

unanimous opinion.” Danelski, The Saboteurs’ Case, supra, at

61. These are not qualities of precedent on which the Court

should rely today."° See Hamdi v. Rumsfeld, 542 U.S. 507, 569

9. Aside from the conspicuous shortcomings in the manner in which

Quirin was decided, the full opinion itself has been roundly criticized. The

“most pernicious legacy of Ex parte Quirin” is the “cavalier dismissal of Ex

parte Milligan,” supra. O'Donnell, In Time of War, supra, at 262. “The

decision’s most glaring deficiency was upholding charges against Haupt,

a US. citizen.” Id.; see also Belknap, The Supreme Court Goes to War: The

Meaning and Implication of the Nazi Saboteur Case, supra, at 87 (“Stone realized

that Haupt should have been tried for treason in a civil court”). “Equally

suspect was Stone’s attempt to distinguish between the situations of

Milligan and Haupt — both of whom were US. citizens and were prosecuted

under the law of war at a time when the civil courts were capable of

adjudicating the charges.” O'Donnell, In Time of War, supra, at 262; see also

Hamdi v. Rumsfeld, 542 U.S. 507, 572 n.4 (2004) (Scalia, J., dissenting) (“The

plurality’s assertion that Quirin somehow ‘clarifies’ Milligan . . . is simply

false. ... [T]he Quirin Court propounded a mistaken understanding of

Milligan”).

10. The uniform criticism by scholars other than amici reflecting the

views of Quirin today support this conclusion. E.g., Louis Fisher, Military

Tribunals & Presidential Power, supra, at 124 (“The saboteur case of 1942

represented an unwise and ill-conceived concentration of power in the

executive branch”); George Lardner, Jr., Nazi Saboteurs Captured! FDR Orders

(Cont'd)

17

(2004) (Scalia, J., dissenting) (Quirin was “not this Court's finest

hour”).”

In sum, improper influences both dominated and infected

the decision-making process in Quirin: the state of war and a

then-dominating Nazi army; the perceived threat of

(Cont'd)

Secret Tribunals; 1942 Precedent Invoked by Bush Against al Qaeda, Wash. Post,

at W12 (Jan. 13, 2002) (Quirin “is a case that stands as a classic example of

what historian Robert Higgs has called the ‘Crisis Constitution’ overriding

the ‘Normal Constitution’ in times of emergency, making the government's

exercise of power more important than the protection of individual rights”);

Bryant & Tobias, Quirin Revisited, supra, at 364 (Quirin should be

“understood as a relic of an unduly narrow and long-abandoned approach

to federal habeas corpus jurisdiction”); Maj. Guy P. Glazier, He Called for

His Pipe and He Called for His Bowl, and He Called for His Members Three —

Selection of Military Juries by the Sovereign: Impediment To Military Justice,

157 Mal. L. Rev. 1, 107-09 (1998) (with respect to the right to a trial by jury,

“eowrts continue to blindly rely on ... Quirin and [its] poorly reasoned

conclusion, which was reached upon facts of no moment today”); G.

Edward White, Felix Frankfurter’s “Soliloquy” in Ex parte Quirin, supra, at

438 (Justice Frankfurter’s soliloquy “revealed himself to be a judge

passionately engaged in promoting a particular outcome in a case, and

strongly desirous of providing a cursory justification for that outcome. . . .”);

Stephen |. Viadeck, Note: The Detention Power, 22 Yale L. & Pol'y Rev. 153,

170 (2004) (Quirin is “a paradoxical and controversial case through and

through”).

11. As Pierce O'Donnell summarized the case:

The frenzied pace of the proceedings and the Germans’ execution

without a full opinion gave tihe appearance that the Supreme

Court was stampeded by Roosevelt. The justices heard argument

without the benefit of reading the briefs ahead of time, decided

the case in less than a day with virtually no collective deliberation

(much less reflection), and were in the dark about how the secret

military commission would rule. In opting to draft an after-the-

fact opinion that consciously sowght to do the least damage to

the judiciary at the expense of justice, Stone injudiciously gave

short shrift to several isswes on which the German saboteurs

had the more persuasive legal argument. In the end, the Court

felt it had no choice but to uphold the military tribunal's

jurisdiction, casting itsellifas little more than a “ private on sentry

duty accosting a commanding general without his pass.”

O’Donnell, In Time of War, supra, at 264 (quoting Mason, Inter Arma Silent

Leges, supra, at 830).

18

vulnerability of the United States to invasion from both the

east and the west; the desire to support President Roosevelt

in time of war; judicial bias against the saboteurs and conflicts

of interest among Court members; the Roosevelt

Administration’s threat to eviscerate the Court's authority by

executing the saboteurs regardless of the Court's action; and

the Court's face-saving rationalization in struggling to validate

its per curiam order in an opinion written after the executions

occurred. Independently and collectively, these influences

strike at the heart of Quirin’s legitimacy —discrediting an

opinion that today forms the fragile backbone of the

government's argument, and the decision of the court of

appeals, that the President has authority to try petitioner and

others similarly situated by military commission.

II. QUIRIN SHOULD BE REPUDIATED

Fortunately, Quirin has lain largely dormant during the

decades since the close of World War Il."* For sixty years, the

12. Quirin was a basis for sustaining the use of a nvilitary commission

for the trial of Japanese Genera! Tomoyuki Yamashvta for crimes committed

during the Japanese occupation of the Philippines. Jn re Yemashta, 327 US.

1 (1946). That case has also been the subject of widespread analysis and

criticism. There, the five judges on the tribunal were officers on General

Douglas MacArthur's staff with no legal experience; none of the officers

appointed to defend General Yamastiita had any criminal defense

experience; and General MacArthur himself prepared the rules for the trial,

including those governing the admissibility of evidence —rules that

essentially allowed for the admissibility of anything “useful.” See, e.g.,

Harlington Wood, Jr., Judge’s Forum No. 2: “Real Judges,” 587 N.Y.U. Ann.

Surv. Am. L. 259, 272-73 (2001). “There had not even been the pretense of

a fair and impartial trial in those military circumstances.” Id. at 273; see also

M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The

Need to Establish a Permanent International Criminal Court, 10 Harv. Hum.

Rts. j. 11, 36 (1997). In two separate dissents, Justices Murphy and Rutledge

severely criticized the gross and open violations of Yamashita’s rights under

the Fifth Amendment. In re Yamashita, 327 US. at 27 (Murphy, J., dissenting);

327 U.S. at 42 (Rutledge, J., dissenting). As Justice Rutledge reasoned, the

country abdicated “the basic standards of trial which, among other

guarantees, the nation fought to keep.” jd. at 42. One commentator noted

that the Supreme Court's decision effectively sanctioning the military

tribunal in Yamashita caused “affirmative damage[] to ourselves and to the

faith of men the world over in the honesty and objectiveness of our lega!

(Cont'd)

19

injustices exposed after its issuance remained little more than

an intellectual curiosity with no serious practical

consequences. That all dramatically changed with the Bush

Administration’s recent effort to breathe life into Quirin to

support an expanded exercise of presidential power.

Where, as here, an opinion “significantly harms our

criminal system and is egregiously wrong,” the Court should

repudiate it without requiring any further justification. Payne

v. Tennessee, 501 U.S. 808, 834 (1991) (Scalia, J., concurring).

That is what this Court should do with Quirin. Then, without

the heavy hand of Quirin on the scales of justice, the Court

can address the merits of the weighty constitutional issues

presented in this case.

CONCLUSION

The Court should repudiate Quirin because it is not valid

precedent for the establishment of military commissions.

Respectfully submitted,

Danie C. TepsTeéin

Counsel of Record

STEVEN C. VALERIO

O’ DoONNELL SHAEFFER Mortimer LLP

550 South Hope Street, Suite 2000

Los Angeles, California 90071

(213) 532-2000

Counsel for Amici Curiae

(Cont'd)

structure.” Belknap, A Putrid Pedigree, supra, at 451 (citing A. Frank Reel,

The Case of General Yamashita 8-9 (1949)). Another commentator argues that

“[i]t is dangerous to deny enemy combatants [like General Yamashita] . . .

their rights under the Fifth Armendment, for once the door has been opened

and left ajar, it may swing wide open.” Charles I. Lugosi, Rule of Law or

Rule by Law: The Detention of Yaser Hiamdi, 30 Am. J. Crim. L. 225, 265 (2003).