After the downright stupid USSC ruling of earlier today, there was something that didn’t sit quite right with me about the ruling from a historical perspective, that I couldn’t quite put my finger on. I couldn’t get it out of my head that I’d already written something to this type of case, but I couldn’t remember what it was, my searching here on the blog produced nothing.

Took me a few hours, but by way of some good search code here at Casa De Bit, and some just plain luck, I was able to come up with it. Turns out, I had written the bones to the post, but had never polished it or submitted it to the blog.  (One of the ‘features’ of having a terrabyte of server at your disposal… the amount of flotsam you eventually collect gets hard to manage. Turns out my memory was somewhat better than my filing system.)

I think it important for me to post it now, however, because there is much in the way of precedent that the ruling earlier today seems to ignore. One can only wonder what is driving the USSC to reverse the earlier ruling.

Anyway, the post at the time was with regards to a July 1942 ruling of the USSC, Ex Parte Quirin.

Remember the time frame in which Quirin got handed down… this was more or less seven months following the attack at Pearl Harbor.  Eight German spies had been captured on US soil, Ernest Peter Burger, George John Dasch, Herbert Hans Haupt, Heinrich Heinck, Edward Keiling, Herman Neubauer, Richard Quirin and Werner Thiel, Burger and Haupt being US citizens.

The case was brought to the court, because the defendants in the case claimed,

…the President is without any statutory or constitutional authority to order the petitioners to be tried by military tribunal for offenses with which they are charged; that in consequence they are entitled to be tried in the civil courts with the safeguards, including trial by jury, which the Fifth and Sixth Amendments guarantee to all persons charged in such courts with criminal offenses. In any case it is urged that the President’s Order, in prescribing the procedure of the Commission and the method for review of its findings and sentence, and the proceedings of the Commission under the Order, conflict with Articles of War adopted by Congress-particularly Articles 38, 43, 46, 50 1/2 and 70-and are illegal and void.

Odd… sounds almost exactly like our current situation, doesn’t it?  Only, Quirin had a different outcome. The court found that military tribunals… not civilian courts… were the appropriate venue for enemies who had “entered or after entry remained in our territory without uniform”, intended to attack the United States.

US Supreme CourtThe ruling reads in part:

…the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

Now, remember, please, that unlike the more current case, the eight were only interested in attacking military targets.

The court ruled unanimously, and with unusual speed, in fact…in less than 24hrs. A few days later, five of the eight were electrocuted, one after the other… and two others, Haupt, and Dasch were jailed, instead, since they had aided the government in it’s case…. a choice made by FDR himself, if I’m not much mistaken. THey were released and deported to Germany in 1948.  I don’t have the documents on this to hand, but I have some memory of Dasch in particular trying repeatedly to get a Visa back to the US after his release. J Edgar Hoover turned him down, right to the day he died.

Interestingly, Citizenship provided no shelter,in the Quirin ruling.

Please don’t rely on my memory of the thing; I’d urge you to read the ruling in Findlaw, which I’ve linked above. I’ll be interested to read the ruling when I can get my hands on the thing… likely this weekend. One of the big questions I’ll be looking at is what has changed before Quirin and now.

I suspect that all that’s happened is we have judges, now, who are less sympathetic to America and it’s causes.

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