COMMENTS ON EX PARTE QUIRIN

Ex Parte Quirin was a very bad decision at the time it was handed down. In 1942
the United States was looking at an uphill battle after getting caught off gaurd
at Pearl Harbor.  Actions like interning US citizens of Japanese descent and the
handling of the German Saboteurs were merely examples of a type of executive
hysteria in the early stages of a war that is commonplace in history. I doubt
many historians would take issue with that assesment.

The reason that I believe Quirin was a bad decision is that it represents a
clear breech of the two most fundamental principles embodied in the
Constitution: 1) the universality of rights, and 2) the separation of powers.
The Constitution is not optional: if the government suspends it, then the
government forfeits any claim to legitimacy by making itself into a tyranny and
by repudiating the legislative basis of its own authority.  That was the essence
of the view taken in the Declaration of Independence with respect to the British
Crown.

Now I assume that most of us on both sides of the present debate agree with
those principles, at least in theory. But set all that aside. How many have
actually read Ex Parte Quirin? How much of the "analysis" that has been advanced
in support of the President's order reflects any real understanding of the
issues invloved? The proponent of the President's order claim that it decisively
supports their position, but in reality, a close reading of the court's decision
strongly supports the opposite view. To wit:


1) The decision in Ex Parte Quirin states:

"It is unnecessary for present purposes to determine to what extent the
President as Commander in Chief has constitutional power to create military
commissions without the support of Congressional legislation. For here Congress
has authorized trial of offenses against the law of war before such
commissions."

Regardless of what the Congress may have authorized in 1942, in the present
instance the Congress has not authorized any such thing.  Further, the order
goes so far as to violate specific provisions of the PATRIOT Act which the
Congress passed as a specific response to the 9/11 attacks. I think it's
absolutely clear under the Constitution that the President can have no such
power without specific authorization.

It is equally clear that the administration made absolutely no effort to have
the Congress authorize the specific provisions of the order in either the War
Powers resolution or the PATRIOT Act.  Those facts alone refute any possible
claim that Congress has authorized the actions proposed in the Presidents order.


2) The decision goes on to say:

"It is no objection that Congress in providing for the trial of such offenses
has not itself undertaken to codify that branch of international law or to mark
its precise boundaries, or to enumerate or define by statute all the acts which
that law condemns. An Act of Congress punishing 'the crime of piracy as defined
by the law of nations' is an appropriate exercise of its constitutional
authority, Art. I,  8, cl. 10, 'to define and punish' the offense since it has
adopted by reference the sufficiently precise definition of international law."

This emphatically supports my position because all of the relevant international
agreements in the present instance were enacted after 1942, and all of them
specifically prohibit virtually all of the provisions in the President's order.
All persons have the same rights, trials are to be public, suspects are
guaranteed counsel of their own choosing, etc, etc.

However uncodified any of that was in 1942, all of it has been comprehensively
codified under international agreements duly ratified by the US government
since. Indeed, the situation today is that the Congress has very deliberately
"undertaken to mark the precise boundaries of international law" by virtue of
ratifying all the various international agreements that are currently in effect;
all of which resulted from concerted and prolonged diplomacy carried out by the
executive branch (which took the leading role in formulating those very
agreements more often than not) over the last six decades.  This includes the UN
Charter, the Universal Declaration of Human Rights, the Geneva Convention, the
Hague Convention, and the International Covenant on Civil and Political Rights.


3) All of the references made to the US Articles of War in the decision are
moot, the Articles of War having been entirely superceded by modern legislation,
specifically the Universal Code of Military Justice.

I do not doubt some elements of the Articles of War were retained more or less
intact, but I strongly suspect that much was radically changed, just as the
underlying premise of the statutes changed from war to defense.

The fact remains that all of the statutes specifically mentioned in the decision
have been superceded and are therefore moot.


4) The decision depends very heavily on the concept of an "illegal" belligerent"
as defined by the largely unwritten "laws of war".  Setting aside the contention
that the laws of war are a dead letter under existing international law (which
specifically outlaws war), the fact remains that the administration's
preposterous efforts to contort the facts to fit that definition are absurdly
fallacious.

It's apples and oranges. This is not a war between two states.  Beyond that, you
can't define an illegal beligerent unless you also define legal belligerents.
The terrorists in this case are strictly criminals.  Whatever logic might
construe them as "illegal belligerents" would apply equally to a shoplifter, and
constitute an absurd perversion of the most fundamental principles of law.

But beyond that, the decision in Ex Parte Quirin states:

"By passing our boundaries for such purposes without uniform or other emblem
signifying their belligerent status, or by discarding that means of
identification after entry, such enemies become unlawful belligerents subject to
trial and punishment."

The highjackers themselves would fit that description if this a was declared war
against another state, but in any case, the highjackers are dead.  It's equally
obvious that such a definition could not apply to individuals like Osama bin
Laden or Mullah Omar because they have not entered the United States and they
have made their belligerency plainly obvious.

Further, during WW2 the United States itself fielded, aided, and directed
thousands of such "illegal belligerents", namely the OSS and all of the various
allied resistance movements which operated behind enemy lines in Axis territory.
I have no doubt that the current administration is doing much the same. Under
the traditional laws of war, a belligerent who gets caught out of uniform in
enemy territory or within enemy military precincts is subject to court martial
and execution, but the fact of ordering or planning such a mission does not
reduce military regulars or the civil authorities to the status of "illegal
belligerents"-- it's all just part of the game.


5) The government LIED to the Supreme Court about the true facts of Ex Parte
Quirin and railroaded the informers that exposed the German operation for the
sake of manipulating the outcome and saving the FBI from embarassment. That is a
compelling precedent AGAINST the Bush order, not for it. We have checks and
balances precisely to prevent such executive malpractice.

I have no sympathy for enemy agents.  My view is that the informers were
obviously owed our thanks, not a prison term obtained on false evidence (their
eventual pardons notwithstanding), and that everyone is entitled to a fair and
impartial trial with counsel of their own choosing under any circumstance
regardless of the crime.


6) I'm not trying to prove that Bush's order is outside the bounds of existing
precedent.  I am showing that the Bush order is outside the bounds of existing
LAWS, and that those laws exclude the precedents cited by  administration.

Further, the precedents which the administration cites are morally wrong by any
rational standard: to deny due process is tyranny, and cannot be justified by
anything which is necessary outside the vile ambitions of a tyrant. There are
"existing precedents" for all sorts of evils, slavery being a clear example, and
the fact that there are such precedents in US history is nothing but a stain on
our national honor. When a government adopts such practices it forfeits any
claim to legitimate authority and makes itself into a criminal agency.


* * *


So in conclusion, far from being "apt" and "wholly on point" as the
administration's supporters have so stridently claimed, most of Ex Parte Quirin
is moot, and what little of it isn't moot supports the administration's critics.
The Bush Military Tribunal order is illegal and unconstitutional, and the Bush
administration is actively conspiring to commit crimes against humanity.

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