Law School Resources

EX PARTE QUIRIN 317 U.S. 1 (1942)

Facts:

Eight men were convicted of treason in 1942. All were born in Germany and all had lived in the United States, and all returned to Germany between 1933 and 1941. After the declaration of war between the United States and the Germany, they were sent back the U.S. where they were to conduct sabotage.

 Upon landing, two of the men, Dasch and Burger turned themselves in to the FBI. All had received instructions in Germany from an officer of the German High Command to destroy war industries and war facilities in the United States, for which they or their relatives in Germany were to receive salary payments from the German Government.

President Franklin D. Roosevelt convened a secret military tribunal which sentenced the eight men to death. The President later commuted the death sentences of Dasch and Burger to life in prison. Though all the men confessed, and gave full statements, the remaining six were executed by electrocution on August 8, 1942 in Washington, D.C. Dasch and Burger were released from prison in 1948 and deported to Germany.

 Issue:

Did the President have authority to have enemy combatants tried before a military tribunal without a jury and without a grand jury indictment, and were the prisoners entitled to judicial review.

Holding:

The Court upheld the prisoners' right to judicial review. The Court declared, however, that a military trial was justified by a combination of the president's power as commander in chief and valid congressional legislation authorizing military trials of those accused of committing offenses against the law of war. The Court upheld congressional adoption of the international common law of war and declared that Congress need not specifically define all the acts that violate that law. The Court further found that the accused had been sufficiently charged with unlawful belligerency and that this offense was within the commission's jurisdiction.

 The justices declared that the prisoners were not entitled to grand jury process or a trial by jury. They distinguished Ex parte Milligan (1866), which barred military trials of violations of the law of war when local state courts are in operation, on the ground that Milligan had not been deemed an enemy belligerent.

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