Quirin, Ex Parte

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Milligan, Ex Parte

Franklin Delano Roosevelt (1882—1945) American Democratic statesman, 32nd President of the US 1933–45

habeas corpus

judicial review

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317 U.S. 1 (1942), argued 29–30 July 1942, decided 31 July 1942 by vote of 8 to 0; per curiam, Murphy not participating; full opinion filed 29 Oct. 1942; Stone for the Court. In early July 1942, President Franklin D. Roosevelt established a military commission to try eight recently captured German saboteurs for alleged violations of the uncodified international law of war and the congressionally enacted Articles of War. During the trial, seven of the accused sought leave to file petitions for habeas corpus. At a special session in late July, the Supreme Court summarily rejected the prisoners’ applications, paving the way for the execution of six of the prisoners little more than a week later.

The Court's unanimous full opinion, issued in late October, 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 parteMilligan (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.

Michal R. Belknap, “The Supreme Court Goes to War: The Meaning and Implications of the Nazi Saboteur Case,” Military Law Review 89 (1980): 59–95.

James May

Subjects: Law.

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