Amicus Curiae Brief — Al-Marri v. Spagone (No. 08-368)

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JAN 28 2009

OFFICE OF THE CLERK

jn The

Supreme Court of the Anited States

¢

ALI SALEH KAHLAH AL-MARRI,

Petitioner.

V

DANIEL SPAGONE, United States

Navy Commander, Consolidated Naval Bng,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fourth Circuit

BRIEF OF HISTORIANS AND SCHOLARS

OF EX PARTE QUIRIN AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

JONATHAN M. FREIMAN KENNETH D. HEATH

Of Counse! ALISON M. WEIR

NATIONAL LITIGATION PROJECT WIGGIN AND DANA LIP

OF THE ALLARD K. One Century Tower

LOWENSTEIN CLINIC P.O. Box 1832

YALE LAW SCHOOL New Haven, CT 06508-1832

127 Wall Street (203) 498-4400

New Haven, CT 06511

(203) 498-4584

woTe 4AWOPO

TABLE OF CONTENTS

INTERESTS OF AMICI CURIAE

SUMMARY OF THE ARGUMENT

Nd NEG Ninaictnainb cuvinnaksdauedanlinsbsinatcenenneweses

I.

The Historical Circumstances Surrounding

Quirin

A. Background: the covert invasion, cap-

ture and military commission trial

B. The Legal Challenge: habeas petitions,

the rush to judgment and the execu-

ERS RIE PG ec SPIES Ee TE PRE ES oe ONT RCE

The Opinion in Quirin is Undermined by

Historical Findings of Conflicts of Interest,

Undue Executive Influence, and a Rush to

Judgment

A. The deliberative defects ........................

B. The substance that deliberative defects

nc mneen

Quirin Should Be Limited to Its Facts or

Repudiated

A. Quirin cannot be extended to cover

this case

B. If Quirin were applicable, it would prop-

erly be revisited and repudiated

CONCLUSION

TABLE OF AUTHORITIES

Page

CASES

al-Marri v. Pucciarelli, 534 *.3d 213 (4th Cir.

tt, | een SS ke 25

al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007)

Boumediene v. Bush, 128 S. Ct. 2229 (2008)....... 23, 27

Burnet v. Coronado Oil & Gas Co., 285 U.S.

SOS Cae cca ois io dveccsncsysdes. panes 29

Cousins v. Wigoda, 409 U.S. 1201 (1972)

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

Ex parte Quirin, 47 F. Supp. 431 (D.D.C. 1942)........ 10

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

Flood v. Kuhn, 407 USS. ZO CA9TZ) ........0....002..00..0000 28

Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ...

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

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

Hohn v. United States, 524 U.S. 236 (1998)

In re Yamashita, 327 U.S. 1 (1946) ie, et,

Korematsu v. United States, 323 U.S. 214

CRD oa scares ec haccnncccccccccecccsccss y.

Lawrence v. Texas, 539 U.S. 558 (20038)

Planned Parenthood of Southeastern Pa.

Casey, 505 U.S. 833 (1992)

TABLE OF AUTHORITIES — Continued

Page

STATUTES AND EXECUTIVE ORDERS

Act of June 4, 1920, ch. 227, 41 Stat. 759.000.0000... 21

Appointment of Military Commission, 7 Fed.

Reg. 5103 (July 7, 1942)

Record Group 165, NARA, Military Intelligence

SE PION -cc<Tesonccncaxashvncnacencbissausancadedaeaneuaneeo nage aiepiees 8

HISTORICAL WRITINGS AND OTHER AUTHORITIES

Michal R. Belknap, Alarm Bells from the Past:

The Troubling History of American Military

Commissions, 28 J. Sup. Ct. Hist. 300 (2003)..........6

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, Frankfurter and the Nazi

Saboteurs, 1982 Sup. Ct. Hist. Soc’y Y.B. 66

Michal R. Belknap, The Supreme Court Goes

to War: The Meaning and Implications of

the Nazi Saboteur Case, 89 Mil. L. Rev. 59

(1980) 2, 5,

Cyrus Bernstein, The Saboteur Trial: A Case

History, 11 Geo. Wash. L. Rev. 131 (1943)

Francis Biddle, Jn Brief Authority 331 (Double-

GN Ret sielitisanacxtiiinch sd odenkenncankamecibouaaestaataaes :

A. Christopher Bryant & Carl Tobias, Quirin

Revisited, 2003 Wis. L. Rev. 309...................2, 22, §

TABLE OF AUTHORITIES — Continued

Page

Edward S. Corwin, Total War and the Constitu-

tion (Alfred A. Knopf 1947)

Gen. Myron C. Cramer, Military Commissions:

Trial of the Eight Saboteurs, 17 Wash. L. Rev.

& St. B.J. 247 (1942)

David J. Danelski, The Saboteurs’ Case, 1996

J. Sup. Ct. Hist. 61 passim

Louis Fisher, Nazi Saboteurs on Trial: A Mili-

tary Tribunal and American Law (Univ.

Press of Kan. 2003); Louis Fisher, Military

Tribunals and Presidential Power: American

Revolution to the War on Terrorism (Univ.

Press of Kan. 2005) passim

John P. Frank, Marble Palace (Alfred A. Knopf

RNC ea ero Ue nt eon Badcen DUKE AM SRA Gls cuAinn mewI 17

Justice Frankfurter, “F.F. Soliloquy,” Hugo

LaFayette Black Papers 1883-1973, Box 269

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 Mili-

tary Justice, 157 Mil. L. Rev. 1 (1998)............0....... 27

Alpheus T. Mason, /nter Arma Silent Leges:

Chief Justice Stone’s Views, 69 Harv. L. Rev.

806 (1956) 14, 18, 22, 23

Pierce O’Donnell, In Time of War: Hitler’s

Terrorist Attack on America (The New Press

2005) passim

TABLE OF AUTHORITIES — Continued

Fred Pasley, Spies Challenge Jurisdiction of

Court Chosen by Roosevelt, N.Y. Daily News,

(undated) (cited in Jack Betts, The Trials of

War, Carolina Alumni Rev., Mar.-Apr. 2002)...

Stephen I. Viadeck, Note, The Detention Power,

22 Yale L. & Pol’y Rev. 153 (2004)

G. Edward White, Felix Frankfurter’s “Solilo-

quy” in Ex parte Quirin: Nazi Sabotage and

Constitutional Conundrums, 5 Green Bag 2d

423 (2002)

XIT William M. Wiecek, The Birth of the Mod-

ern Constitution: The United States Supreme

Court, 1941-1953 (Cambridge Univ. Press

2006)

Frederick Bernays Wiener, Oral History (1987) ..

Harlington Wood, Jr., “Real Judges,” 58 N.Y.U.

Ann. Surv. Am. L. 259 (2001)

Page

ens 13

22

INTERESTS OF AMICI CURIAE'

Pursuant to Rule 37 of this Court, counsel of

record have received timely notice of the intent to file

this amicus curiae brief and have consented to its

filing.

Amici are legal historians and scholars ~- Michal

R. Belknap, A. Christopher Bryant, David J. Danel-

ski, Louis Fisher, 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). They submit this brief to provide the Court

with an historical account of the factual circum-

stances surrounding the decision in Quirin. Amici

maintain that Quirin was an institutional defeat for

the Court, a flawed decision that emerged out of a

judicial process that is all but unthinkable today.

Although the Court would be well within its discre-

tion to repudiate Quirin, at a minimum this Court

should decline to extend it to the very different facts

of this case.

Michal R. Belknap, Professor of Law at Califor-

nia Western School of Law and Adjunct Professor of

History at the University of California, San Diego,

is a constitutional and legal historian and former

‘ No counsel for a party authored this brief in whole or in

part, and no person or entity other than amici curiae or their

counsel made a monetary contribution to the preparation or

submission to this brief. Amici: present their personal, not

institutional, views

Military Intelligence officer (1967-1969). He has

published numerous scholarly works on legal history

and related topics, including four articles examining

Quirin. One of these, The Supreme Court Goes to War:

The Meaning and Implications of the Nazi Saboteur

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

analysis of the case.

A. Christopher Bryant is Professor of Law at

the University of Cincinnati, where he is the faculty

advisor to the University of Cincinnati chapter of the

Federalist Society. Professor Bryant, who has pub-

lished several scholarly works on constitutional law

and legal history, and who worked for all three

branches of the federal Government before joining the

academy, is the author, along with Carl Tobias, of

Quirin Revisited, 2003 Wis. L. Rev. 309 and

Youngstown Revisited, 29 Hastings Const. L.Q. 373

(2002).

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 pub-

lished numerous works on constitutional law, legal

history, and the Supreme Court, including The Sabo-

teurs’ Case, 1996 J. Sup. Ct. Hist. 61, a leading article

on Quirin for which he received the Hughes-Gossett

Award for Historical Excellence from The Supreme

Court Historical Society.

Louis Fisher, a political scientist, specializes in

constitutional issues at the Law Library of Congress,

3

after spending 36 years with the Congressional

Research Service, also part of the Library of Con-

gress. He testifies frequently on constitutional ques-

tions before congressional committees. His books

include Nazi Saboteurs on Trial: A Military Tribunal

and American Law (Univ. Press of Kan. 2003) and

Military Tribunals and Presidential Power: American

Revolution to the War on Terrorism (Univ. Press of

Kan. 2005). The latter won the Neustadt Book Award

given by the American Political Science Association.

Peter Irons, a practicing attorney, is Professor

Emeritus of Political Science and Director Emeritus

of the Earl Warren Bill of Rights Project at the Uni-

versity of California, San Diego. Professor Irons is the

author of thirteen books on the Supreme Court and

constitutional litigation, including War Powers: How

the Imperial Presidency Hijacked the Constitution

(Metro. Books 2005). He has served as lead counsel in

the successful efforts 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, Jn Time of War: Hitler’s Terrorist

Attack on America (The New Press 2005).

¢

4

SUMMARY OF THE ARGUMENT

The Government relies on Quirin to support its

assertion of power to seize and detain — indefinitely

and without criminal charge or trial — a lawful resi-

dent of the United States suspected of affiliation with

a terrorist organization. The historical consensus

developed by amici and others demonstrates that

Quirin cannot, and should not, bear that weight.

As this Court knows, Quirin involved eight men

directed by the Nazi military in 1942 to invade the

United States in disguise and commit acts of war. The

facts surrounding the capture and trial of the sabo-

teurs are extraordinary, as are the facts surrounding

the Supreme Court decision to authorize the trial.

Though six men were put to death in Quirin, history

reveals that the Court had well-documented concerns

about the validity of executive authority to establish

the military commission that ordered their execu-

tions. The Court’s decision in Quirin is tainted by

conflicts of interest, undue executive influence, and

judicial haste. Though the Government seeks to

expand it here, Quirin is at best a flawed decision

that should be limited to its facts. If necessary, this

Court would be justified in going further, repudiating

Quirin in order to reaffirm the centrality of delibera-

tive process and impartial judgment in the rule of

law.

5

ARGUMENT

The Historical Circumstances Surround-

ing Quirin

A. Background: the covert invasion, cap-

ture and military commission trial

In the summer of 1942, during World War II,

eight German saboteurs landed on the beaches of

Long Island and Florida. 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. Pierce O’Donnell, In Time of War: Hitler’s

Terrorist Attack on America 10, 19 (The New Press

2005). 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. Id.

at 10. Just months earlier, Japan had destroyed Pearl

Harbor, and the Japanese forces stretched a vast

perimeter of conquest over the Pacific. Jd. at 10-11,

19. As anxiety about the war took hold of the popular

consciousness, America looked alarmingly vulnerable.

Id. at 19.

Arriving by U-boats in military uniforms and

then changing into civilian disguise, the German

saboteurs were well funded by the German Govern-

ment and armed with crates of explosives. Shortly

after their arrival, one saboteur, George J. Dasch, had

a change of heart and notified the Federal Bureau of

Investigation of their arrival and plans. Dasch’s

6

initial attempt to contact the FBI was more or less

ignored; the agent made a note of the call but, assum-

ing Dasch was a crank, did not forward it to Washing-

ton. Jd. at 80-81. Dasch then travelled to Washington

himself, where he eventually found an FBI agent who

believed him. Jd. at 84, 100-01. With Dasch’s assis-

tance, the FBI captured the other seven saboteurs

over the next two weeks, before any could complete

his mission. See Edward S. Corwin, Total War and the

Constitution 117 (Alfred A. Knopf 1947). The Ameri-

can public embraced the news as a great victory.

O’Donnell, supra, at 104; David J. Danelski, The

Saboteurs’ Case, 1996 J. Sup. Ct. Hist. 61, 65.”

The capture presented President Franklin D.

Roosevelt with the question of how to prosecute the

saboteurs. The FBI had captured the saboteurs on

American soil at a time when the civilian courts were

* In reciting the factual background of Quirin, amici rely

primarily on Professor Danelski’s historical account. See Danel-

ski, supra, at 65-66. The history of Quirin has been researched

extensively and recounted in numerous works. See, e.g., Corwin,

supra, at 117-27; Louis Fisher, Nazi Saboteurs on Trial: A

Military Tribunal and American Law (Univ. Press of Kan. 2003);

Louis Fisher, Military Tribunals and Presidential Power:

American Revolution to the War on Terrorism (Univ. Press of

Kan. 2005); O’Donnell, supra; 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 Implications of the Nazi Saboteur Case, 89 Mil. L

Rev. 59 (1980).

7

open and operating — a critical point under the Arti-

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

(1866). Nevertheless, his advisors feared that the civil

courts would not mete out sufficiently harsh sen-

tences for the saboteurs’ acts. See Danelski, supra, at

65-66. Roosevelt wanted the saboteurs executed,

which his advisors believed could be accomplished

only by a military trial. Jd.

There was a second political reason to create a

military commission. The Roosevelt Administration

initially planned to bring the eight saboteurs to civil

trial. But Dasch decided that he would explain in

open court how he assisted the Government in locat-

ing his seven colleagues. The Administration had

convinced the nublic (and enemy nations) that the

FBI had an uncanny ability to discover and appre-

hend saboteurs. The Administration did not want one

of those saboteurs to broadcast the fact that his

fellows had been quickly rounded up only because

he had betrayed them - and even then only because

he had persevered in betraying them despite an

initial FBI rebuff. Only a secret military commission

would be likely to prevent the disclosure of these

uncomfortable facts. Fisher, Nazi Saboteurs on Trial,

supra, at 46, 54.

Within a week, President Roosevelt ordered that

the saboteurs be tried before a military commission

composed of seven retired generals, and he author-

ized the commission to impose a penalty of death.

8

Danelski, supra, at 67.° The presidential order de-

parted from the Articles of War by permitting the

admission of hearsay evidence in the trial, by reduc-

ing the number of votes necessary to convict on

charges for which the death penalty was authorized,

and by sidestepping the required review of certain

sentences by the Judge Advocate General. Id.; see

Appointment of Military Commission, 7 Fed. Reg.

5103 (July 7, 1942).*

A three week trial of the saboteurs before the

military commission began on July 6, 1942. Danelski,

supra, at 67-68, 71. Attorney General Francis B.

Biddle served as chief prosecutor. Colonel Kenneth C.

Royall served as chief defense counsel, representing

* Administration officials concluded that existing law

authorized prison sentences of no more than two or three years.

Fisher, Nazi Saboteurs on Trial, supra, at 46-47. For an explana-

tion how the President’s order effectively provided an ex post

facto law, see Cyrus Bernstein, The Saboteur Trial: A Case

History, 11 Geo. Wash. L. Rev. 131, 157 (1943).

* Then, as now, certain Executive Branch officials paid

scant attention to what were derisively referred to as “technical

rights.” General George Strong, the intelligence chief reporting

to Secretary of War Henry L. Stimson, advised Stimson in a

June 28, 1942 memorandum that “the prompt trial and execu-

tion” of the saboteurs by a military commission was necessary

even though martial law had not been declared and the civil

courts were open. He thought the “exigencies of the present

situation” required “drastic action without too much deference to

technical rights which might be accorded, under the Constitu-

tion....” Record Group 165, NARA, Military Intelligence

Service.

9

seven of the saboteurs with co-counsel Colonel Cas-

sius M. Dowell. Jd. at 67.°

The military commission began without a set of

written rules. Roosevelt’s military order authorized

the commission to “make such rules for the conduct of

the proceeding, consistent with the powers of military

commissions under the Articles of War, as it shall

deem necessary for a full and fair trial of the matters

before it.” Appointment of Military Commission, 7

Fed. Reg. at 5103. The power to “make such rules”

freed the commission from following the procedures

enacted by Congress or those that appeared in the

Manual for Courts-Martial. Rather than working

from an established preexisting set of procedural

rules known to both sides, the commission issued

rules on an ad hoc basis in response to issues arising

at trial. Fisher, Nazi Saboteurs on Trial, supra, at 52-

04, 56-58.

B. The Legal Challenge: habeas petitions,

the rush to judgment and the execu-

tions

On July 21, 1942, in the midst of the military

commission trial, Rovall announced that he wouid file

federal habeas corpus petitions for the saboteurs to

challenge the constitutionality of the military pro-

ceedings. /d. at 66-68; O’Donnell, supra, at 172-81.

The FBI's informant, George John Dasch, was separately

represented by Colonel Carl L. Ristine. Danelski, supra, at 67

10

On July 23, the prosecution and defense, along with

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, supra, at 68. On July 27, the

Court announced that it would convene a special

session to hear the matter on July 29. Jd. On July 28,

the saboteurs filed habeas petitions in the district

court. Ex parte Quirin, 47 F. Supp. 431, 431 (D.D.C.

1942). The district court summarily — and immedi-

ately — denied the petitions that evening. Id.

On the next day, July 29 — the day after the

district court denied the petitions — the parties sub-

mitted more than 180 pages of briefs to the Supreme

Court. Danelski, supra, at 68. On that very day, the

Supreme Court began hearing oral argument, which

continued into the next day, July 30. Jd. at 71."

One day later, at 11:59 a.m. on July 31, the

Supreme Court received papers from the D.C. Circuit

affirming the district court’s summary denial of the

petitions. One minute after it received the D.C.

Circuit's affirmance, the Court convened and granted

certioram. Gen. Myron C. Cramer, Military Commis-

sions: Trial of the Eight Saboteurs, 17 Wash. L. Rev. &

* Among the issues was whether Royall could argue the

case in the Supreme Court without the DC. Circuit having first

acted. After some discussion, the Court agreed to let oral

argument continue on the condition that Rovall would present

papers to the D.C. Circuit. Fisher, Nazi Saboteurs on Trial,

supra, at 96-97

11

St. B.J. 247, 253 (1942). The Supreme Court immedi-

ately denied the habeas petitions in a one-page per

curiam order and announced that it would later file a

full opinion addressing the merits. See Quirin, 317

U.S. at 1, 5-6; see also td. at 18-19 (reproducing the

per curiam opinion in an unnumbered footnote).’

After the Supreme Court denied habeas, the

military trial quickly resumed and concluded. Danel-

ski, supra, at 71. The parties gave closing arguments

the next day, on August 1. Two days later, the Com-

mission found all defendants guilty of all charges,

recommending death for all eight. Jd. at 71. The

Commission forwarded the transcript to President

Roosevelt for his review. Jd. at 71-72. The White

House announced its approval of the Commission’s

decision on August 8, upholding six of the death

sentences, commuting Dasch’s sentence to 30 years

and another cooperative saboteur’s sentence to life

imprisonment. Jd. at 72. The Government began the

executions at noon that same day and electrocuted

the six saboteurs in a little over an hour. Zd.;

O’Donnell, supra, at 248-49.

Nearly three months would pass before the

Supreme Court issued an opinion explaining its

reasons for finding military jurisdiction proper and

The order 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.

12

thereby denying habeas corpus relief. See Quirin, 317

U.S. at 1 (full opinion filed October 29, 1942). Along

the way, serious misgivings about the decision arose

among the Justices, but undue Executive Branch

influence and the Court’s need to justify a fait accom-

pli left little room to change course.

II. The Opinion in Quirin is Undermined by

Historical Findings of Conflicts of Inter-

est, Undue Executive Influence, and a

Rush to Judgment.

Justices Scalia and Stevens had reason to de-

scribe Quirin as “not this Court’s finest hour.” Hamdi

v. Rumsfeld, 542 U.S. 507, 569 (2004) (Scalia &

Stevens, JJ., dissenting). As Justice Stevens noted

two terms ago, “Quirin represents the high-water

mark of military power....” Hamdan v. Rumsfeld,

548 U.S. 557, 597 (2006) (Stevens, J., concurring)

(explaining that “no more robust model of executive

power exists”). In the more than 60 years since the

Court issued Quirin, legal historians have uncovered

a wealth of information that casts grave doubt on

whether the water should ever have reached that

high.

A. The deliberative defects

The Justices’ deliberations after the electrocu-

tions — like those before the electrocutions — were

affected by President Rooseveit’s credible threats to

undermine the authority of the Court. As the New

13

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 Alumni Rev., Mar.-Apr.

2002, at 32, 37). President Roosevelt made it clear

to the Court that he would assert the supremacy

of his authority regardless of the Court’s position.

O’Donnell, supra, at 213.

The Roosevelt Administration had made plain

that the President expected unanimous approval of

the commissions. President Roosevelt was deter-

mined to block any judicial review of the Nazi sabo-

teurs. He told Attorney General Biddle: “I won’t give

them up.... I won’t hand them over to any United

States marshal armed with a writ of habeas corpus.

Understand?” Francis Biddle, In Brief Authority 331

(Doubleday 1962). In chambers, immediately before

hearing argument in Quirin, Justice Roberts reported

to his colleagues that Attorney General Biddle had

privately expressed concerns that Roosevelt would

execute the Germans no matter what the Court did.

Id.; Danelski, supra, at 69. Justice Roberts added

that he believed Roosevelt intended to have all eight

men shot even if the Court did not acknowledge his

authority. O'Donnell, supra, at 213. The threat was

plain: if the Court did not give the President the

power he wanted, then he would take it anyway,

causing undeniable damage to the authority and

14

sovereignty of the Court. The point was not lost on

Chief Justice Stone, who replied, “That would be a

dreadful thing.” Jd.; Danelski, supra, at 69.

The Executive Branch was aided in its efforts by

Justice Frankfurter, who had advised Secretary of

War Henry L. Stimson to try the saboteurs by mili-

tary commission. Fisher, Nazi Saboteurs on Trial,

supra, at 95. Indeed, he had secretly advised the

Administration about how to structure the military

commission in anticipation of a Supreme Court

challenge. Danelski, supra, at 66 (citing Diary of

Henry L. Stimson (June 29, 1942) (on file with Micro-

film, Library of Congress)). Despite these ex parte

conversations with the Administration, and the

resulting conflict arising out of the very case before

the Court, Frankfurter did not recuse himself. In-

stead, he tried to spread his bias to the rest of the

Court.

Chief Justice Stone assigned himself the opinion,

Danelski, supra, at 72, and in the three months that

followed, the Justices struggled to find common

ground. See, e.g., Michal R. Belknap, Frankfurter and

the Nazi Saboteurs, 1982 Sup. Ct. Hist. Soc’y Y.B. 66,

68. The Chief Justice described his effort to secure a

unanimous opinion as “a mortification of the flesh.”

See 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 Manuscript Room, Li-

brary of Congress)).

15

Seeking to persuade reluctant Justices to rally

around the result, Frankfurter wrote to his colleagues

the “EF. Soliloquy,” a fictional dialogue between

Justice Frankfurter and the habeas petitioners. “F.F.

Soliloquy,” Hugo LaFayette Black Papers 1883-1973,

Box 269 (on file with the Manuscript Division, Li-

brary of Congress), reprinted in Belknap, Frankfurter

and the Nazi Saboteurs, supra, at 66. The F-F. Solilo-

quy revealed a Justice openly hostile to the accused

and “manifestly unwilling to afford them any proce-

dural safeguards.” See Belknap, Frankfurter and the

Nazi Saboteurs, supra, at 66.

Frankfurter labeled the Germans “damned scoun-

drels” who had a “helluvacheek” filing the petitions,

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.” Jd. 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.” Jd. After conclud-

ing that “for you there are no procedural rights,”

“FF.” ends his dialogue by telling the saboteurs, “you

will remain in your present company and be damned.”

Id. at 70.

The F-F. Soliloquy shows that Justice Frank-

furter “cared far more that these enemies be pun-

ished quickly than that they be tried fairly.” Jd. at 66.

As well, it showed that his support for the Roosevelt

16

war effort trumped all constitutional concerns. See

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

than communicate substantive constitutional argu-

ments to his fellow Justices, Justice Frankfurter

launched “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 and Constitutional

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

Soliloquy is all the more remarkable because Justice

Frankfurter directed it at six Germans who had been

electrocuted months earlier.

The Court’s haste in issuing its order before

drafting a full decision vexed several Justices. In

1953, when the Justices debated whether to meet in

summer session to hear the espionage case of Julius

and Ethel Rosenberg, one Justice recalled how the

Court a decade earlier had met during the summer to

hear the Nazi saboteur case. It was further suggested

that, as in Quirin, the Court could announce its

judgment shortly after oral argument and file a full

opinion later, with legal reasoning. Justice Robert

Jackson rebuffed the proposal, and Frankfurter

himself added that ““‘the Quirin experience was not a

happy precedent.” Fisher, Nazi Saboteurs on Trial,

supra, at 134 (quoting “Memorandum Re: Rosenberg

v. United States, Nos. 111 and 687, October Term

1952,” at 8 (June 4, 1953), Frankfurter Papers,

Harvard Law School, Paige Box, Part I, Reel 70, LC).°

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, 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, who had been Justice Black’s law clerk in the

summer of 1942, wrote that Quirin was an “in-

stance[] 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).

“{I]f the judges are to run a court of law and not a

butcher shop,” Frank wrote, then “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.” Jd. at 250.

Alpheus T. Mason, author of a biography of Chief

Justice Stone, explained how difficult it was for Stone

* The unusual summer session is one reason for which the

Court has cited Quirin as a limited precedent confined to the

most extraordinary of circumstances. See Cousins v. Wigoda, 409

U.S. 1201, 1204 (1972) (Rehnquist, J.) (denying an application

for a stay following oral argument, and observing that Quirin

was one of only four cases heard in special session).

18

to draft the full opinion. In an effort to justify the

already-executed death sentences, Stone confided in

his clerk that he believed that “‘the President’s order

probably conflicts with the Articles of War.’” Mason,

supra, at 822 (quoting Letter from Harlan Fiske

Stone to Bennett Boskey (undated), Harlan Fiske

Stone Papers, supra). He wavered in his conviction

that the Court needed to justify what had already

been done, considering holding in favor of the peti-

tioners. O’Donnell, supra, at 255. The Chief Justice

recognized the weakness of the Government’s argu-

ments, remarking, “I hope the military is better

equipped to fight the war than it is to fight its legal

battles.” Jd. 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, supra, at 831.

But ultimately, the Chief Justice thought he had

no choice but to uphold the jurisdiction of the military

commissions. If the Court were to confess the error of

its hasty order, it “‘would leave the present Court in

the unenviable position of having stood by and al-

lowed six men to go to their death.’” Fisher, Nazi

Saboteurs on Trial, supra, at 111-12 (quoting Chief

Justice Harlan Fiske Stone, “Memorandum [to the

Court} re Saboteur Cases,” at 2 (Sept. 25, 1942),

Harlan Fiske Stone Papers, supra). And the Chief

Justice concluded that any such admission by the

19

Court, mere months after the saboteurs’ executions,

would come at too high an institutional cost.”

B. The substance that deliberative de-

fects brushed aside

Quirin ultimately rested on its construction of

Congressional action in enacting the Articles of War,

which were the precursor to the Uniform Code of

Military Justice (UCMJ). As history has since shown,

the severe defects in the Court’s deliberative process

caused the Justices to ignore their serious concerns

about the proper construction of those Articles. Amici

do not aim here to suggest a proper construction of

those Articles (which in any event have been super-

seded by the UCMJ and are not applicable in this

case), but merely to show briefly that the case’s

deliberative defects led the Justices to set aside their

serious substantive misgivings, both before and after

the rendering of the full opinion.

On September 10, 1942, while working on a

draft of the full opinion, Chief Justice Stone told

Justice Frankfurter that he found it “‘very difficult to

' See XII William M. Wiecek, The Birth of the Modern

Constitution: The United States Supreme Court, 1941-1953 320

(Cambridge Univ. Press 2006) (“Chief Justice Stone provided an

accurate and fair evaluation of his handiwork: ‘About all I can

say for what I have done is that I think it will present to the

Court al] tenable and pseudo-tenable bases for decision.’”

(quoting Stone to Frankfurter (Sept. 16, 1942)).

20

support the Government’s construction of the articles

[of war].’” Fisher, Nazi Saboteurs on Trial, supra, at

110 (quoting Letter from Stone to Frankfurter (Sept.

10, 1942), Frankfurter Papers, supra). In particular,

the Justices were unable to agree on the construction

of Articles 46 and 50'/, a dilemma that Stone found

““‘embarrassing’” because six of the petitioners had

been executed and it was “‘too late to raise the ques-

tion in their behalf.’” Jd. at 112 (quoting Chief Justice

Harlan Fiske Stone, “Memorandum [to the Court] re

Saboteur Cases,” supra, at 1). Frankfurter wrote with

confidence that he had “not a shadow of doubt” that

Roosevelt “did not comply with Article 46 et seg.” of

the Articles of War. Id. at 117 (emphasis added). But,

at least at that time, the non-compliance with the

Articles of War did not matter to him.

Likewise, the Quzrin Court’s construction of

Article 15 proved unsettling after the opinion’s re-

lease. Shortly after the Court issued the full opinion

in October 1942, Frankfurter took the extraordinary

step of commissioning an analysis of the opinion by a

military justice expert, Frederick Bernays Wiener.

Fisher, Military Tribunals and Presidential Power,

supra, at 121. In three successive analyses, Wiener

found serious constitutional problems with the

Court’s decision. /d. Notably, Weiner criticized the

Court for creating “‘a good deal of confusion as to the

proper scope of the Articles of War insofar as they

relate to military commissions.’” Jd. (quoting “Obser-

vations of Ex parte Quirin,” at 1, signed “F.B.W.”

Frankfurter Papers). “Weaknesses in the decision

21

flowed ‘in large measure’ from the administration’s

disregard for ‘almost every precedent in the books’

when it established the military tribunal.” Jd. (quot-

ing “Observations of Ex parte Quirin,” supra).

Wiener’s strongest criticism concerned Quirin’s

interpretation of Article 15, which provided:

The provisions of these articles conferring ju-

risdiction 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 commis-

sions, provost courts, or other military tribu-

nals.

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

Quirin, of course, found that Congress’s purpose

in enacting Article 15 was to incorporate by reference

the rules of the law of war. Quirin, 317 U.S. at 27-29.

Yet the laws of war did not stretch so far as to encom-

pass military commissions convened in the United

States, away from the field of war. As Wiener noted in

a letter to Frankfurter, in which he quoted Brigadier

General Enoch H. Crowder’s testimony to Congress,

the purpose of Article 15 was merely to “‘save[] to

these war courts [including military commissions] the

jurisdiction they now have and make[] it a concur-

rent 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

22

to be convenient.” See Fisher, Nazi Saboteurs on

Trial, supra, at 133 (quoting Letter from Wiener to

Frankfurter at 1-2 (Aug. 1, 1943), Frankfurter Pa-

pers) (emphasis added); see also Danelski, supra, at

73, 79." The Quirin court’s interpretation of Article

15 — its conferral of military jurisdiction in certain

proscribed circumstances off the battlefield — remains

controversial. See Hamdan, 548 U.S. at 593 (noting

that the Court then had “no occasion to revisit

Quirin’s controversial characterization of Article of

War 15 as congressional authorization for military

commissions”).

Compelled to justify the desired outcome, Chief

Justice Stone’s clerks unsurprisingly found “little

authority” to support the desired outcome. A. Chris-

topher Bryant & Carl Tobias, Quirin Revisited, 2003

Wis. L. Rev. 309, 323 (citing Letter from Harlan

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

Harlan Fiske Stone Papers, supra); see also Mason,

supra, at 820-21. His biographer offered this blunt

assessment of the Justices’ actions in Quirin: “Their

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

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

1987 that General MacArthur “had abandoned the rules of

evidence” in Yamashita “because in the Quirin case everything

hinged on the hearsay statements of co-conspirators,” and the

Executive Branch wished to avoid the evidentiary rule that such

statements “couldn’t be used against other conspirators.”

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

the library of The Judge Advocates General’s School, Charlotts-

ville, VA).

23

own involvement in the trial through their decision in

the July hearing practically compelled them to cover

up or excuse the President’s departures from custom-

ary practice.” Mason, supra, at 826. But having given

permission for the saboteurs’ executions, the Court

felt that it had no practical option other than to

uphold the exercise of military jurisdiction. Jd. at 830.

Ill. Quirin Should Be Limited to Its Facts or

Repudiated.

In Boumediene, this Court described Quirin,

along with Yamashita, as “habeas cases involving

enemy aliens tried for war crimes.” Boumediene uv.

Bush, 128 S. Ct. 2229, 2270-71 (2008). While noting

that significant criticism had been leveled, this Court

concluded that it “need not revisit these cases” be-

cause they were distinguishable on their facts. Id. at

2271. So too here. Quirin need not — and should not --

be extended to cover the very different facts of this

case. But if this Court determines that it must con-

clude that Quuirin is applicable to these facts, then

Quirin’s core principles will have unraveled, and it

should be revisited and squarely repudiated.

A. Qutirin cannot be extended to cover

this case.

The opinion in Quirin circumscribed domestic

military jurisdiction while permitting its exercise,

after the fact, on the particular facts of the Nazi

saboteurs who had been electrocuted. Quitrin, 317

24

U.S. at 45-46. The petitioners in Quirin did not

contest the fact that they were affiliated with the

armed forces of an enemy nation, or that they could

be detained as combatants under the law of war. /d.

at 21-22, 37-38. The Quirin court held that petition-

ers who, armed and in uniform, had crossed enemy

lines and entered the United States on behalf of an

enemy nation could be tried by military commission

for violating the laws of war. Jd. at 21-22, 31 (noting

that soldiers landed by German submarines and

came ashore in German Marine Infantry uniforms

carrying explosives); see also id. at 22 n.1 (noting that

the Eastern Seaboard had been designated a military

defense zone, with military forces deployed along it to

stop enemy soldiers from landing).

For Quirin to be applicable here, it would have to

expand radically in several directions at once. First, it

would have to provide authority for the detention

without criminal charge or trial of those who are

suspected of supporting a terrorist organization,

rather than an enemy nation. Second, it would have

to provide authority for the detention without crimi-

nal charge or trial of those who deny, rather than

admit, their alleged status. Third, it would have to

cover a petitioner who 1s indisputably not an enemy

alien. Fourth, it would have to cover a person who

has not been charged with a war crime.

Expanding Quirin in all four directions at once

would rend it beyond repair. The Quirin court limited

its holding to admitted uniformed soldiers of a foreign

Government who snuck behind enemy lines during a

25

declared war in order to commit war crimes. Such

soldiers unquestionably qualified as combatants

within long established law-of-war principles. Jd. at

30-31 & n.7 (citing, inter alia, the Hague Convention

as evidence of “universal agreement and practice” on

this matter). But inferring a detention power far

beyond those circurnstances, as the Government does

here, causes the “longstanding law-of-war principles”

on which Quirin rested to “unravel.” See Hamdi, 542

U.S. at 521; see also al-Marri v. Wright, 487 F.3d 160,

195 (4th Cir. 2007) (“([T]he indefinite military deten-

tion of a civilian like al-Marri would shred those

understandings apart.”), rev'd en banc sub nom. al-

Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008).

B. If Quirin were applicable, it would

properly be revisited and repudiated.

As Parts I and II make plain, improper influ-

ences adversely affected the decision-making process

in Quirin: the state of war and a then-dominating

Nazi army; the perceived threat of vulnerability of

the United States to invasion from both the east and

the west; the desire to support President Roosevelt

in time of war; conflicts of interest among Court

members; the Administration’s threat to eviscerate

the Court’s authority; and the Court’s face-saving

rationalization in struggling to validate its hasty per

curiam order in an opinion written after the execu-

tions occurred. Independently and collectively, these

influences tarnish Quirin’s legitimacy — discrediting

26

an opinion that today forms the backbone of the

Government’s argument."

The history of Quirin may well be “a fascinating

tale of intrigue, betrayal, and propaganda ... [of]

questions of judicial disqualification; a rush to judg-

ment; [and] an agonizing effort to justify a fait ac-

compli... .” Danelski, supra, at 61. But it provides no

foundation for the rule of law.” If at the time the

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 “Court’s cavalier dismissal of Ex parte Milligan.”

O’Donnell, supra, at 262; see also Hamdi, 542 U.S. at 572 n.4

(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... .”).

Milligan remains a “seminal case,” as this Court noted in

Hamdan. See Hamdan, 548 U.S. at 591. Nothing suggests that

the deliberative process in Milligan suffered from the severe

flaws that it did in Quirin.

" To the contrary, the opinion has since been forcefully

denounced. See, e.g., Corwin, supra, at 118 (describing the

decision as “littlke more than a ceremonious detour to a prede-

termined goal”); Fisher, Military Tribunals and Presidential

Power, supra, at 124 (“The saboteur case of 1942 represented an

unwise and ill-conceived concentration of power in the executive

branch.”); O’Donnell, supra, at 262 (describing the decision as

“more [of] a political act than a judicial decision”); XII Wiecek,

supra, at 320 (“As a specimen of judicial craft, it was transpar-

ently and disingenuously results-oriented, based on_ logic-

chopping distinctions and evasive of real constitutional prob-

lems.”); Belknap, The Supreme Court Goes to War, supra, at 87

(describing Quirin as a “dubious decision”); Bryant & Tobias,

supra, at 364 (concluding that Quirin should be “understood as a

relic of an unduly narrow and long-abandoned approach to

(Continued on following page)

27

Supreme Court’s legitimacy required (as Chief Justice

Stone then thought) that the Court justify what had

already been done, then it is at least equally true

sixty years later that contemporary knowledge of the

circumstances of Quirin compels the opposite conclu-

sion: that the Court’s legitimacy would be enhanced,

not undermined, by disavowing the decision.

Stare decisis is not “an inexorable command.”

Lawrence v. Texas, 539 U.S. 558, 577 (2003); see also

Hertz v. Woodman, 218 U.S. 205, 212 (1910) (“The

rule of stare decisis, though one tending to consis-

tency and uniformity of decision, is not inflexible.

Whether it shall be followed or departed from is

a question entirely within the discretion of the

om..."

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 Mil. L. Rev. 1,

108-09 (1998) (describing how with respect to the right to a trial

by jury, “courts continue to blindly rely on ... Quirin and [its]

poorly reasoned conclusion, which was reached upon facts of no

moment today”); White, supra, at 438 (describing how Justice

Frankfurter’s soliloquy “revealed himself to be a judge passion-

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

strongly desirous of providing a cursory justification for that

outcome”); Stephen I. Vladeck, Note, The Detention Power, 22

Yale L. & Pol’y Rev. 153, 170 (2004) (describing Quirin as “a

paradoxical and controversial case through and through”).

* Little law has been built atop Quirin. Its most promi-

nent progeny is Yamashita. As Boumediene noted, Yamashita

too has been “sharply criticized by Members of this Court.”

Boumediene, 128 S. Ct. at 2271 (citing Hamdan, 548 U.S., at

(Continued on following page)

28

“The jurist concerned with public confidence

in, and acceptance of the judicial system

might well consider that, however admirable

its resolute adherence to the law as it was, a

decision contrary to the public sense of jus-

tice as it is, operates, so far as it is known, to

diminish respect for the courts and for law

itself.”

Flood v. Kuhn, 407 U.S. 258, 293 n.4 (1972) (Mar-

shall, J., dissenting) (quoting Peter L. Szanton, Stare

Decisis; A Dissenting View, 10 Hastings L.J. 394, 397

(1959)). In short, where a decision “was not correct

617 and Yamashita, 327 U.S. at 41-81 (Rutledge, J., dissent-

ing)). Yamashita has also been the subject of widespread criti-

cism by scholars. General Yainashita’s five judges were officers

on General Douglas MacArthur’s staff with no legal experience;

none of the officers appointed to defend him had any criminal

defense experience. See Harlington Wood, Jr., “Real Judges,” 58

N.Y.U. Ann. Surv. Am. L. 259, 272-73 (2001) (“In General

Yamashita’s case, there had not even been the pretense of a fair

and impartial] trial in those military circumstances.”). Moreover,

the legal standard applied against General Yamashita was that

he “must have [] known” about atrocities committed by his

troops in the Philippines, even though there was no evidence

that he knew of the atrocities or had in any way ordered them.

Fisher, Military Tribunals and Presidential Power, supra, at

146, 148-49. Years later, when U.S. officers were charged with

atrocities in Vietnam, they were tried under a different and

more lenient standard. They had to have “actual knowledge.” Jd.

at 153. Quirin has also been cited for assessing the Court’s

jurisdiction where a matter has not been addressed by the Court

of Appeals, see, e.g., Hohn v. United States, 524 U.S. 236, 246

(1998), and for evaluating whether a special session of the Court

is appropriate for hearing such matters, Cousins, 409 U.S. at

1204

29

when it was decided, ... [i]t ought not to remain

binding precedent.” Lawrence, 539 U.S. at 578.

Where, as here, the “facts have so changed, or

come to be seen so differently, as to have robbed the

old rule of significant application or justification,” a

case should be repudiated. Planned Parenthood of

Southeastern Pa. v. Casey, 505 U.S. 833, 855 (1992).

As Justice Brandeis noted, in “cases involving consti-

tutional issues,” the 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 judicial authority may, as Mr.

Chief Justice Taney said, ‘depend altogether on the

force of the reasoning by which it is supported.”

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 412-

13 (1932) (Brandeis, J., dissenting) (quoting The

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

majority decision overruled by Helvering v. Mountain

Producers Corp., 303 U.S. 376, 386-87 (1938).

Were Quirin to be expanded to cover the peti-

tioner in this case, this Court’s decision would en-

trench that case’s errors more deeply in our law.

Justice Jackson noted as much in his dissent from

Korematsu. When the Court rationalizes “[a] military

order, however unconstitutional” and validates the

principle behind that order, Jackson warned, “{tjhe

principle then lies about like a loaded weapon ready

for the hand of any authority that can bring forward

a plausible claim of an urgent need. Every repetition

imbeds the principle more deeply in our law and

thinking and expands it to new purposes.” Korematsu

30

v. United States, 323 U.S. 214, 246 (1944) (Jackson,

J., dissenting).

As one historian put it:

The frenzied pace of the proceeding and the

Germans’ execution without a full opinion

gave the appearance that the Supreme Court

was stampeded by Roosevelt. The justices

heard argument without the benefit of read-

ing the briefs ahead of time [and] decided the

case in less than a day with virtually no col-

lective deliberation (much less reflection). .. .

In opting to draft an after-the-fact opinion

that consciously sought to do the least dam-

age to the judiciary at the expense of justice,

Stone injudiciously gave short shrift to sev-

eral issues 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 itself as little more than a “private on

sentry duty accosting a commanding general

without his pass.”

O'Donnell, supra, at 264 (quoting Mason, supra, at

830).

31

CONCLUSION

Quirin is a flawed decision that this Court should

confine to its historical moment and facts. If it cannot

be so confined, Quirin should be reconsidered and

repudiated. Amici take no position on the ultimate

resolution of the petition.

Respectfully submitted,

JONATHAN M. FREIMAN KENNETH D. HEATH

Of Counsel ALISON M. WEIR

NATIONAL L:TIGATION PROJECT WIGGIN AND DANA LLP

OF THE ALLARD K. One Century Tower

LOWENSTEIN CLINIC P.O. Box 1832

YALE LAW SCHOOL New Haven, CT 06508-1832

127 Wall Street (203) 498-4400

New Haven, CT 06511

(203) 498-4584