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A Photographic Journal of Life
in an Afghan Refugee Camp
By Judith Mann
November 18, 2001
Jonathan Farley
Shame on You,
Chelsea!
C.G. Estabrook
American
Crusades
November 17, 2001
Zoltan Grossman
It Ain't
Over Til It's Over
November 16, 2001
Rick Giombetti
Rep.
McDermott and
the Decay of Liberalism
Fawzia Afzal-Khan
The Voices
of Muslim Feminists
Mokhiber/Weissman
Kill,
Kill, Kill
November 15, 2001
George
Monbiot
Blasting
Our Way
Toward Peace
Jack McCarthy
Hitchens
Mind-Meld
and Hot Bodies
Steve
Perry
Afghan
Puzzle Palace
RAWA
We Do Not Accept
the Northern Alliance
November 14, 2001
Jensen/Mahajan
The
Press Must Press Harder on Afghanistan
David Vest
The Great Unificator
Harry
Browne
Preventing
Future Terrorism
November 13, 2001
Peter Mahoney
Veteran's
Day, 2001
Rep. Ron
Paul
Expanding
NATO
Is a Bad Idea
November 12, 2001
Robert Jensen
Goodbye to
All That...
Patriotism
Nancy
Oden
My
Day at the Airport
CounterPunch Wire
East Timor
10 Years
After the Massacre
C.G. Estabrook
Instead
of Terror
Alexander Cockburn
Wide World
of Torture
November 11, 2001
Douglas
Valentine
Homeland
Insecurity: The Politics of Terror in America
November 10, 2001
Grover Furr
Seeking an Opposition
to the Afghan War
Bruce
Kyle
Anatomy
of a Green Smear:
Backstabbing Nancy Oden
November 9, 2001
Karen Snell
Torture By
Proxy
John Troyer
A
New Kind of Activism
Tariq Ali
Q &
A About the War
Michael
Colby
Schoolgirl
Gets Booted
for Anti-war Views
November 8, 2001
Mokhiber/Weissman
The
Cipro Rip-Off
Mitchel Cohen
The Smear Campaign
Against Nancy Oden
Steve
Perry
American
Roulette
November 7, 2001
Bahour/Dahan
Placebo Peace
Plan
Tom Turnipseed
Bush
Gives Billions
to His Oil Buddies
Cockburn/St. Clair
Greens, Airports
and
National ID Cards
Dr. Susan
Block
Ayatollah
Asscroft
Brian J. Foley
Bombing Campaign
Not "Self-Defense" Under International Law
November 6, 2001
Mark Scaramella
Where's
That Red Cross Money Going
C.G. Estabrook
Our Torturers
Sheperd
Bliss
Scott
Nearing on War
Rep. Ron Paul
Underwriting
the Taliban
Tariq
Ali
The
General Who
Came to Dinner
Evan Ravitz
Stop the War
Through
Direct Democracy
Steve
Perry
Hunger
in Afghanistan
November 5, 2001
Patrick Cockburn
Living
in the Minefields
David Price
Terror
and Indigenous People
November 3, 2001
Declan McCullagh
Nancy Oden Interview
Daniel
Wolff
The
Memphis Blues Again
Mark Weisbrot
War on Civilians
Dave Marsh
How
the RIAA (and the FBI) Cheat Musicians
Robert Jensen
Speaking
Out Against
War on Campus
November 2, 2001
CounterPunch
Wire
Green
Party Leader Detained at Maine Airport; Prevented from Boarding
Any Plane
Alexander Cockburn
FBI Eyes
Torture
November 1, 2001
Dean Baker
Dying
for Patents
Sami Amarah
US Attempts
to Recruit
Russian Vets of Afghan War
Molly Secours
Where
Are the Voices of Reason? Let the Women
Be Heard
William Blum
Unleashing the
CIA
October 31, 2001
Tom Turnipseed
Terrorize
the Poor,
Subsidize the Rich
Chris Clarke
Thank God
for Berkeley
Steve
Perry
The
Silent Genocide
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Torture in US Prisons
bin Laden and Bush
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The New Intifada:
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November
18, 2001
The Quirin Ruling
FDR's Troublesome Precedent
For Bush's Terror Courts
By Tony Mauro
American
Lawyer Media
Only a month earlier, the FBI had arrested eight
German saboteurs intent on blowing up American factories, bridges
and department stores.
Now, on July 23, 1942, the lawyers for
the Germans and U.S. Attorney General Francis Biddle found themselves
at the Pennsylvania summer farm of U.S. Supreme Court Justice
Owen Roberts. They pleaded with Roberts and Justice Hugo Black,
also on hand, to convince the Supreme Court to return from its
summer recess immediately to weigh the constitutionality of the
military commission created to try the Germans.
The justices agreed and soon announced
a special session of the Court -- before the trial was over and
before a habeas corpus petition was filed in the case. After
a breakneck briefing schedule and nine hours of oral argument
on July 29 and 30, the Court almost immediately upheld the procedure
in a brief per curiam decision. The full ruling came nearly three
months later.
Meanwhile, the defendants had been found
guilty. On Aug. 8, six of the Germans were electrocuted and the
other two were sentenced to long prison terms, by order of President
Franklin Roosevelt.
The executions marked an end to an extraordinary
fast-track legal process that is the model for President George
W. Bush's Nov. 13 order authorizing military commissions as a
way to bring the Sept. 11 terrorists to justice.
The Supreme Court decision that upheld
the military trials of the German saboteurs, Ex parte Quirin,
also provides the strongest authority for Bush's controversial
order, which would permit swift and secret trials on military
bases or even at sea.
But to some, the saboteur trials and
the Quirin decision itself are flawed models for the current
situation, and instead demonstrate that wartime justice can be
too hasty to withstand the test of time.
"Insofar as Quirin states a rule
broad enough to cover the Bush order, I am not sure that we should
view it any more favorably than, say, Korematsu," says Christopher
Eisgruber, director of the program in law and public affairs
at Princeton University. Korematsu v. United States was the 1944
decision, never overruled, that upheld the wartime internment
of Japanese-Americans.
Justices themselves later looked back
on the case as one of the high court's less shining moments.
"Not a happy precedent," said
Justice Felix Frankfurter in 1953.
Justice William O. Douglas regretted
ruling so quickly without issuing a fully reasoned opinion. "It
is extremely undesirable to announce a decision on the merits
without an opinion accompanying it," Douglas later said
of Quirin.
Wrote scholar John Frank, who had been
a clerk to Justice Black during the Quirin case: "The Court
allowed itself to be stampeded."
Even Chief Justice William Rehnquist,
in his 1998 book, "All the Laws But One," offers Quirin
as an example of how the Supreme Court through history has given
the green light to restrictions on civil liberties while war
is under way, whereas it is less willing to do so once hostilities
have ended.
Problems with the case began soon after
the saboteurs landed in two groups -- one on Long Island in New
York and the other at Ponte Vedra in Florida. A member of the
Coast Guard came across the New York contingent, but the Germans
had taken off by the time he ran back to his station to get help.
One of the Germans, George Dasch, went straight to Washington
and turned himself and the others in to the Federal Bureau of
Investigation. But when FBI head J. Edgar Hoover announced the
arrests, there was no mention of Dasch's assistance, and the
media portrayed the arrests as the result of a daring capture
by FBI agents.
Almost immediately, Biddle, the attorney
general, sought authorization to try the Germans in a secret
proceeding -- in part, some historians assert, to avoid having
to reveal that Hoover had embellished the story of the capture.
Biddle also wanted to secure death sentences for the saboteurs,
which would not have been available in civilian courts.
President Roosevelt issued an order authorizing
the military commission and closing civilian courts to saboteurs
and spies who entered the country on behalf of "any nation
at war with the United States." Bush's order, by contrast,
appears to apply to any noncitizen with terrorist connections,
no matter what the country of origin.
The saboteur trial was quickly convened
at the Justice Department, presided over by a panel of military
officers who were apparently not lawyers. Biddle himself led
the prosecution.
Noted lawyer Lloyd Cutler of Wilmer,
Cutler & Pickering was the youngest member of the prosecution
team, and last week recalled moments from the trial. Procedural
rules favored the prosecution, Cutler said.
"You didn't need to prove anything
beyond a reasonable doubt," Cutler said. Instead, a "reasonable
man" standard was used. "It was very different from
a civilian trial," he noted.
As soon as defense lawyer Kenneth Royall
indicated he would challenge the constitutionality of the process,
Biddle went to Roosevelt. The president reacted angrily, according
to a 1996 article in the Journal of Supreme Court History.
"I want one thing clearly understood,
Francis," Roosevelt said, according to Biddle's memoirs.
"I won't hand them over to any United States marshal armed
with a writ of habeas corpus." Biddle agreed, telling Roosevelt,
"We have to win in the Supreme Court, or there will be a
hell of a mess."
After the meeting at the Pennsylvania
farm, the Supreme Court saw the importance of ruling swiftly
and the Court's deliberations began.
At a conference before the oral arguments,
Roberts reported to his brethren that Biddle had expressed concerns
that Roosevelt would execute the Germans no matter what the Court
did. "That would be a dreadful thing," said Chief Justice
Harlan Fiske Stone. The importance of the case led Stone to decide
he should not recuse, even though his son Lauson Stone, an Army
major, was part of the Germans' defense team.
Justice Francis Murphy, who was an active
duty officer in the Army reserves, did recuse because of his
military status -- though he listened to the arguments from a
hidden nook of the Court.
Biddle's biggest problem during oral
arguments was distinguishing the German saboteurs from the Civil
War case of Ex parte Milligan, which barred military trials for
civilians if civil courts were open. Biddle told the justices
that Milligan, regarded by many as a triumph for the rule of
law, should be overruled. Royall, arguing for the Germans, cited
Justice David Davis' eloquent proclamation in Milligan that the
Constitution governs "equally in war and peace."
After the Court upheld the tribunals
in a brief order on July 31, Stone retreated to a resort in New
Hampshire, where he devoted six weeks to writing an opinion in
the case. He described the period as a "mortification of
the flesh."
As Stone deliberated, some say he came
to the realization that some of the Germans -- who claimed to
be naturalized U.S. citizens -- should not have been tried in
military court. Scholar Michael Belknap wrote that Stone saw
his task as justifying "as best he could a dubious decision."
Stone peppered his law clerk Bennett Boskey with memos expressing
his doubts about the case.
Boskey is still in private practice in
Washington, D.C.
As Stone circulated his draft opinion,
other justices considered writing concurrences. In the end, Stone
papered over the differences and issued a ruling that said military
tribunals could be used to prosecute belligerents, including
"the enemy combatant who without uniform comes secretly
through the lines for the purpose of waging war by destruction
of life or property."
That language may be enough for the Bush
administration to cite as justification for its controversial
order. But with no formal declaration of war in the current terrorist
crisis, lawyers for defendants may also find language in Quirin
that they can exploit.
The decision only vaguely dealt with
the Milligan precedent, and it implied that spies and saboteurs
retain some constitutional rights. It avoided announcing clear
rules for when military commissions are appropriate and when
they are not. Stone also acknowledged that "a majority of
the full Court are not agreed on the appropriate grounds for
the decision."
But in the context of what Roosevelt
wanted the Supreme Court to do, Stone's hand wringing was irrelevant.
The justices had approved the tribunals, the saboteurs had been
executed and the parsing of Ex parte Quirin was left for future
generations.
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