# Amicus Curiae Brief — Hamdan v. Rumsfeld

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0208%3A56

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 548 U.S. 557

## Text

—

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0208%3A56. Public record. Not legal advice.