U.S. Supreme Court Ex Parte Quirin, 317 U.S. 1 (1942) Ex Parte Quirin{| 317 U.S.
1 fn1|1} Nos. ___, Original MOTIONS FOR LEAVE TO FILE PETITIONS
FOR WRITS OF HABEAS
CORPUS and United States ex rel. Quirin v.
Cox{| 317 U.S.
1 fn2|2} Nos. 1-7 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA Argued July 29-30,
1942 Decided July 31, 1942 Per Curiam decision filed, July 31,
1942{| 317 U.S.
1 fn3|3} Full Opinion filed, October 29,
1942{| 317 U.S.
1 fn4|4} 317 U.S.
1 Syllabus 1. A federal court may refuse to issue a writ of habeas corpus
where the facts alleged in the petition, if proved, would not
warrant discharge of the prisoner. P. 317 U. S. 24 . Page 317 U. S. 2 2. Presentation to the District Court of the United States for
the District of Columbia of a petition for habeas corpus was the
institution of a suit, and denial by that court of leave to file
the petition was a judicial determination of a case or controversy
reviewable by appeal to the U.S. Court of Appeals for the District
of Columbia and in this Court by certiorari. P. 317 U. S. 24 .

															3. The President's Proclamation of July 2, 1942, declaring that
all persons who are citizens or subjects of, or who act under the
direction of, any nation at war with the United States, and who
during time of war enter the United States through coastal or
boundary defenses, and are charged with committing or attempting to
commit sabotage, espionage, hostile acts, or violations of the law
of war, "shall be subject to the law of war and to the jurisdiction
of military tribunals," does not bar accused persons from access to
the civil courts for the purpose of determining the applicability
of the Proclamation to the particular case; nor does the
Proclamation, which in terms denied to such persons access to the
courts, nor the enemy alienage of the accused, foreclose
consideration by the civil courts of the contention that the
Constitution and laws of the United States forbid their trial by
military commission. P. 317 U. S. 24 .

															4. In time of war between the United States and Germany,
petitioners, wearing German military uniforms and carrying
explosives, fuses, and incendiary and time devices, were landed
from German submarines in the hours of darkness, at places on the
Eastern seaboard of the United States. Thereupon they buried the
uniforms and supplies, and proceeded, in civilian dress, to various
places in the United States. 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. They also had been paid by the German
Government during their course of training at a sabotage school,
and had with them, when arrested, substantial amounts of United
States currency, which had been handed to them by an officer of the
German High Command, who had instructed them to wear their German
uniforms while landing in the United States. Specification 1 of the
charges on which they were placed on trial before a military
commission charged that they,

															"being enemies of the United States and acting for . . . the
German Reich, a belligerent enemy nation, secretly and covertly
passed, in civilian dress, contrary to the law of war, through the
military and naval lines and defenses of the United Page 317 U. S. 3 States . . . and went behind such lines, contrary to the law of
war, in civilian dress . . . for the purpose of committing . . .
hostile acts, and, in particular, to destroy certain war
industries, war utilities and war materials within the United
States." Held: (1) That the specification sufficiently charged an offense
against the law of war which the President was authorized to order
tried by a military commission; notwithstanding the fact that, ever
since their arrest, the courts in the jurisdictions where they
entered the country and where they were arrested and held for trial
were open and functioning normally. Ex parte
Milligan , 4 Wall. 2, distinguished. Pp. 317 U. S. 21 , 317 U. S. 23 , 317 U. S. 36 , 317 U. S. 48 .

															(2) The President's Order of July 2, 1942, so far as it lays
down the procedure to be followed on the trial before the
Commission and on the review of its findings and sentence, and the
procedure in fact followed by the Commission, were not in conflict
with Articles of War 38, 43, 46, 50 1/2 and 70. P. 317 U. S. 46 .

															(3) The petitioners were in lawful custody for trial by a
military commission, and, upon petitions for writs of habeas
corpus, did not show cause for their discharge. P. 317 U. S. 47 .

															5. Articles 15, 38 and 46 of the Articles of War, enacted by
Congress, recognize the "military commission" as an appropriate
tribunal for the trial and punishment of offenses against the law
of war not ordinarily tried by courts-martial. And by the Articles
of War, especially Article 15, Congress has explicitly provided, so
far as it may constitutionally do so, that military tribunals shall
have jurisdiction to try offenses against the law of war in
appropriate cases. Pp. 317 U. S.
26 -28.

															6. Congress, in addition to making rules for the government of
our Armed Forces, by the Articles of War has exercised its
authority under Art. I, § 8, cl. 10 of the Constitution to define
and punish offenses against the law of nations, of which the law of
war is a part, by sanctioning, within constitutional limitations,
the jurisdiction of military commissions to try persons for
offenses which, according to the rules and precepts of the law of
nations, and more particularly the law of war, are cognizable by
such tribunals. And by Article of War 15, Congress has incorporated
by reference, as within the jurisdiction of military commissions,
all offenses which are defined as such by the law of war and which
may constitutionally be included within that jurisdiction. Pp. 317 U. S. 28 , 317 U. S. 30 .

															7. This Court has always recognized and applied the law of war
as including that part of the law of nations which prescribes, for
the Page 317 U. S. 4 conduct of war, the status, rights and duties of enemy nations
as well as of enemy individuals. P. 317 U. S. 27 .

															8. The offense charged in this case was an offense against the
law of war, the trial of which by military commission had been
authorized by Congress, and which the Constitution does not require
to be tried by jury. Ex parte
Milligan , 4 Wall. 2, distinguished. P. 317 U. S. 45 .

															9. By the law of war, lawful combatants are subject to capture
and detention as prisoners of war; unlawful combatants, in
addition, are subject to trial and punishment by military tribunals
for acts which render their belligerency unlawful. P. 317 U. S. 30 .

															10. It has long been accepted practice by our military
authorities to treat those who, during time of war, pass
surreptitiously from enemy territory into our own, discarding their
uniforms upon entry, for the commission of hostile acts involving
destruction of life or property, as unlawful combatants punishable
as such by military commission. This practice, accepted and
followed by other governments, must be regarded as a rule or
principle of the law of war recognized by this Government by its
enactment of the Fifteenth Article of War. P. 317 U. S. 35 .

															11. Citizens of the United States who associate themselves with
the military arm of an enemy government, and with its aid, guidance
and direction enter this country bent on hostile acts, are enemy
belligerents within the meaning of the Hague Convention and the law
of war. P. 317 U. S. 37 .

															12. Even when committed by a citizen, the offense here charged
is distinct from the crime of treason defined in Article III, § 3
of the Constitution, since the absence of uniform essential to one
is irrelevant to the other. P. 317 U. S. 38 .

															13. Article III, § 2, and the Fifth and Sixth Amendments of the
Constitution did not extend the right to demand a jury to trials by
military commission or require that offenses against the law of
war, not triable by jury at common law, be tried only in civil
courts. P. 317 U. S. 38 .

															14. Section 2 of the Act of Congress of April 10, 1806, derived
from the Resolution of the Continental Congress of August 21, 1776,
and which imposed the death penalty on alien spies "according to
the law and usage of nations, by sentence of a general court
martial," was a contemporary construction of Article III, § 2 of
the Constitution and of the Fifth and Sixth Amendments, as not
foreclosing trial by military tribunals, without a jury, for
offenses against the law of war Page 317 U. S. 5 committed by enemies not in or associated with our Armed Forces.
It is a construction which has been followed since the founding of
our government, and is now continued in the 82nd Article of War.
Such a construction is entitled to great respect. P. 317 U. S. 41 .

															15. Since violation of the law of war is adequately alleged in
this case, the Court finds no occasion to consider the validity of
other specifications based on the 81st and 82nd Article of War, or
to construe those articles or decide upon their constitutionality a
so construed. P. 317 U. S. 46 .

															Leave to file petitions for habeas corpus in this Court denied.
Orders of District Court (47 F.Supp. 431), affirmed.

															The Court met in Special Term, on Wednesday, July 29, 1942,
pursuant to a call by the Chief Justice having the approval of all
the Associate Justices.

															The Chief Justice announced that the Court had convened in
Special Term in order that certain applications might be presented
to it and argument be heard in respect thereto.

															In response to an inquiry by the Chief Justice, the Attorney
General stated that the Chief Justice's son, Major Lauson H. Stone,
U.S.A. had, under orders, assisted defense counsel before the
Military Commission, in the case relative to which the Special Term
of the Court was called; but that Major Stone had had no connection
with this proceeding before this Court. Therefore, said the
Attorney General, counsel for all the respective parties in this
proceeding joined in urging the Chief Justice to participate in the
consideration and decision of the matters to be presented. Colonel
Kenneth C. Royall, of counselor the petitioners, concurred in the
statement and request of the Attorney General.

															The applications, seven in number ( ante, p. 1, n 1), first took the form of petitions
to this Court for leave to file petitions for writs of habeas
corpus to secure the release of the petitioners from the custody of
Brigadier General Page 317 U. S. 6 Albert L. Cox, U.S.A. Provost Marshal of the Military District
of Washington, who, pursuant to orders, was holding them in that
District for and during a trial before a Military Commission
constituted by an Order of the President of the United States.
During the course of the argument, the petitioners were permitted
to file petitions for writs of certiorari, directed to the United
States Court of Appeals for the District of Columbia, to review,
before judgment by that Court, orders then before it by appeal by
which the District Court for the District of Columbia had denied
applications for leave to file petitions for writs of habeas
corpus.

															After the argument, this Court delivered a Per Curiam Opinion,
disposing of the cases (footnote, p. 317 U. S. 18 ). A
full opinion, which is the basis of this Report, was filed with the
Clerk of the Court on October 29, 1942. Page 317 U. S. 18 [ Footnote 1 ]

															No. ___, Original, Ex parte Richard Quirin; No. ___,
Original, Ex parte Herbert Hans Haupt; No. ___, Original, Ex parte Edward John Kerling; No. ___, Original, Ex
parte Ernest Peter Burger; No. ___, Original, Ex parte
Heinrich Harm Heinck; No. ___, Original, Ex parte Werner
Thiel; and No. ___, Original, Ex parte Hermann Otto
Neubauer. [ Footnote 2 ]

															No. 1, United States ex rel. Quirin v. Cox, Provost
Marshal; No. 2, United States ex rel. Haupt v. Cox, Provost
Marshal; No. 3, United States ex rel. Kerlin v. Cox,
Provost Marshal; No. 4, United States ex rel. Burger v.
Cox, Provost Marshal; No. 5, United States ex rel. Heinck
v. Cox, Provost Marshal; No. 6, United States ex rel.
Thiel v. Cox, Provost Marshal, and No. 7, United States ex
rel. Neubauer v. Cox, Provost Marshal. [ Footnote 3 ]

															The following is the per curiam opinion filed July 31, 1942:

															"PER CURIAM."

															"In these causes, motions for leave to file petitions for habeas
corpus were presented to the United States District Court for the
District of Columbia, which entered orders denying the motions.
Motions for leave to file petitions for habeas corpus were then
presented to this Court, and the merits of the applications were
fully argued at the Special Term of Court convened on July 29,
1942. Counsel for petitioners subsequently filed a notice of appeal
from the order of the District Court to the United States Court of
Appeals for the District of Columbia, and they have perfected their
appeals to that court. They have presented to this Court petitions
for writs of certiorari before judgment of the United States Court
of Appeals for the District of Columbia, pursuant to 28 U.S.C. §
347(a). The petitions are granted. In accordance with the
stipulation between counsel for petitioners and for the respondent,
the papers filed and argument had in connection with the
applications for leave to file petitions for habeas corpus are made
applicable to the certiorari proceedings."

															"The Court has fully considered the questions raised in these
cases and thoroughly argued at the bar, and has reached its
conclusion upon them. It now announces its decision and enters its
judgment in each case, in advance of the preparation of a full
opinion, which necessarily will require a considerable period of
time for its preparation and which, when prepared, will be filed
with the Clerk."

															"The Court holds:"

															"(1) That the charges preferred against petitioners on which
they are being tried by military commission appointed by the order
of the President of July 2, 1942, allege an offense or offenses
which the President is authorized to order tried before a military
commission."

															"(2) That the military commission was lawfully constituted."

															"(3) That petitioners are held in lawful custody for trial
before the military commission, and have not shown cause for being
discharged by writ of habeas corpus."

															"The motions for leave to file petitions for writs of habeas
corpus are denied."

															"The orders of the District Court are affirmed. The mandates are
directed to issue forthwith."

															"MR. JUSTICE MURPHY took no part in the consideration or
decision of these cases."

															[ Footnote 4 ] Post, p. 317 U. S. 18 .

															MR. CHIEF JUSTICE STONE delivered the opinion of the Court.

															These cases are brought here by petitioners' several application
for leave to file petitions for habeas corpus in this Court, and by
their petitions for certiorari to review orders of the District
Court for the District of Columbia, which denied their applications
for leave to file petitions for habeas corpus in that court.

															The question for decision is whether the detention of
petitioners by respondent for trial by Military Commission,
appointed by Order of the President of July 2, 1942, Page 317 U. S. 19 on charges preferred against them purporting to set out their
violations of the law of war and of the Articles of War, is in
conformity to the laws and Constitution of the United States.

															After denial of their applications by the District Court, 47 F. Supp.
431 , petitioners asked leave to file petitions for habeas
corpus in this Court. In view of the public importance of the
questions raised by their petitions and of the duty which rests on
the courts, in time of war as well as in time of peace, to preserve
unimpaired the constitutional safeguards of civil liberty, and
because, in our opinion, the public interest required that we
consider and decide those questions without any avoidable delay, we
directed that petitioners' applications be set down for full oral
argument at a special term of this Court, convened on July 29,
1942. The applications for leave to file the petitions were
presented in open court on that day, and were heard on the
petitions, the answers to them of respondent, a stipulation of
facts by counsel, and the record of the testimony given before the
Commission.

															While the argument was proceeding before us, petitioners
perfected their appeals from the orders of the District Court to
the United States Court of Appeals for the District of Columbia,
and thereupon filed with this Page 317 U. S. 20 Court petitions for certiorari to the Court of Appeals before
judgment, pursuant to § 240(a) of the Judicial Code, 28 U.S.C. §
347(a). We granted certiorari before judgment for the reasons which
moved us to convene the special term of Court. In accordance with
the stipulation of counsel, we treat the record, briefs and
arguments in the habeas corpus proceedings in this Court as the
record, briefs and arguments upon the writs of certiorari.

															On July 31, 1942, after hearing argument of counsel and after
full consideration of all questions raised, this Court affirmed the
orders of the District Court and denied petitioners' applications
for leave to file petitions for habeas corpus. By per curiam
opinion, we announced the decision of the Court, and that the full
opinion in the causes would be prepared and filed with the
Clerk.

															The following facts appear from the petitions or are stipulated.
Except as noted, they are undisputed.

															All the petitioners were born in Germany; all have lived in the
United States. All returned to Germany between 1933 and 1941. All
except petitioner Haupt are admittedly citizens of the German
Reich, with which the United States is at war. Haupt came to this
country with his parents when he was five years old; it is
contended that he became a citizen of the United States by virtue
of the naturalization of his parents during his minority, and that
he has not since lost his citizenship. The Government, however,
takes the position that, on attaining his majority he elected to
maintain German allegiance and citizenship, or in any case that he
has, by his conduct, renounced or abandoned his United States
citizenship. See Perkins v. Elg, 307 U.
S. 325 , 307 U. S. 334 ; United States ex rel. Rojak v. Marshall, 34 F.2d
219 ; United States ex rel. Scimeca v. Husband, 6 F.2d
957, 958; 8 U.S.C. § 801, and compare 8 U.S.C. § 808. For
reasons presently to be stated we do not find it necessary to
resolve these contentions. Page 317 U. S. 21 After the declaration of war between the United States and the
German Reich, petitioners received training at a sabotage school
near Berlin, Germany, where they were instructed in the use of
explosives and in methods of secret writing. Thereafter
petitioners, with a German citizen, Dasch, proceeded from Germany
to a seaport in Occupied France, where petitioners Burger, Heinck
and Quirin, together with Dasch, boarded a German submarine which
proceeded across the Atlantic to Amagansett Beach on Long Island,
New York. The four were there landed from the submarine in the
hours of darkness, on or about June 13, 1942, carrying with them a
supply of explosives, fuses, and incendiary and timing devices.
While landing, they wore German Marine Infantry uniforms or parts
of uniforms. Immediately after landing, they buried their uniforms
and the other articles mentioned and proceeded in civilian dress to
New York City.

															The remaining four petitioners at the same French port boarded
another German submarine, which carried them across the Atlantic to
Ponte Vedra Beach, Florida. On or about June 17, 1942, they came
ashore during the hours of darkness, wearing caps of the German
Marine Infantry and carrying with them a supply of explosives,
fuses, and incendiary and timing devices. They immediately buried
their caps and the other articles mentioned, and proceeded in
civilian dress to Jacksonville, Florida, and thence to various
points in the United States. All were taken into custody in New
York or Chicago by agents of the Federal Bureau of Investigation.
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. They
also had been paid by the German Government during their course of
training at the sabotage school, and had received substantial sums
in Page 317 U. S. 22 United States currency, which were in their possession when
arrested. The currency had been handed to them by an officer of the
German High Command, who had instructed them to wear their German
uniforms while landing in the United States. [ Footnote 2/1 ]

															The President, as President and Commander in Chief of the Army
and Navy, by Order of July 2, 1942, [ Footnote 2/2 ] appointed a Military Commission and
directed it to try petitioners for offenses against the law of war
and the Articles of War, and prescribed regulations for the
procedure on the trial and for review of the record of the trial
and of any judgment or sentence of the Commission. On the same day,
by Proclamation, [ Footnote 2/3 ] the
President declared that

															"all persons who are subjects, citizens or residents of any
nation at war with the United States or who give obedience to or
act under the direction of any such nation, Page 317 U. S. 23 and who during time of war enter or attempt to enter the United
States . . . through coastal or boundary defenses, and are charged
with committing or attempting or preparing to commit sabotage,
espionage, hostile or warlike acts, or violations of the law of
war, shall be subject to the law of war and to the jurisdiction of
military tribunals."

															The Proclamation also stated in terms that all such persons were
denied access to the courts.

															Pursuant to direction of the Attorney General, the Federal
Bureau of Investigation surrendered custody of petitioners to
respondent, Provost Marshal of the Military District of Washington,
who was directed by the Secretary of War to receive and keep them
in custody, and who thereafter held petitioners for trial before
the Commission.

															On July 3, 1942, the Judge Advocate General's Department of the
Army prepared and lodged with the Commission the following charges
against petitioners, supported by specifications:

															1. Violation of the law of war.

															2. Violation of Article 81 of the Articles of War, defining the
offense of relieving or attempting to relieve, or corresponding
with or giving intelligence to, the enemy.

															3. Violation of Article 82, defining the offense of spying.

															4. Conspiracy to commit the offenses alleged in charges 1, 2 and
3.

															The Commission met on July 8, 1942, and proceeded with the
trial, which continued in progress while the causes were pending in
this Court. On July 27th, before petitioners' applications to the
District Court, all the evidence for the prosecution and the
defense had been taken by the Commission and the case had been
closed except for arguments of counsel. It is conceded that, ever
since petitioners' arrest, the state and federal courts in Florida,
New York, and the District of Columbia, and in Page 317 U. S. 24 the states in which each of the petitioners was arrested or
detained, have been open and functioning normally.

															While it is the usual procedure on an application for a writ of
habeas corpus in the federal courts for the court to issue the writ
and on the return to hear and dispose of the case, it may without
issuing the writ consider and determine whether the facts alleged
by the petition, if proved, would warrant discharge of the
prisoner. Walker v. Johnston, 312 U.
S. 275 , 312 U. S. 284 .
Presentation of the petition for judicial action is the institution
of a suit. Hence, denial by the district court of leave to file the
petitions in these causes was the judicial determination of a case
or controversy, reviewable on appeal to the Court of Appeals and
reviewable here by certiorari. See Ex parte
Milligan , 4 Wall. 2, 71 U. S. 110 -113; Betts v. Brady, 316 U. S. 455 , 316 U. S.
458 -461.

															Petitioners' main contention is that 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.

															The Government challenges each of these propositions. But
regardless of their merits, it also insists that petitioners must
be denied access to the courts, both because they are enemy aliens
or have entered our territory as enemy belligerents, and because
the President's Proclamation undertakes in terms to deny such
access to the class of Page 317 U. S. 25 persons defined by the Proclamation, which aptly describes the
character and conduct of petitioners. It is urged that, if they are
enemy aliens or if the Proclamation has force, no court may afford
the petitioners a hearing. But there is certainly nothing in the
Proclamation to preclude access to the courts for determining its
applicability to the particular case. And neither the Proclamation
nor the fact that they are enemy aliens forecloses consideration by
the courts of petitioners' contentions that the Constitution and
laws of the United States constitutionally enacted forbid their
trial by military commission. As announced in our per curiam
opinion, we have resolved those questions by our conclusion that
the Commission has jurisdiction to try the charge preferred against
petitioners. There is therefore no occasion to decide contentions
of the parties unrelated to this issue. We pass at once to the
consideration of the basis of the Commission's authority.

															We are not here concerned with any question of the guilt or
innocence of petitioners. [ Footnote
2/4 ] Constitutional safeguards for the protection of all who
are charged with offenses are not to be disregarded in order to
inflict merited punishment on some who are guilty. Ex parte
Milligan, supra, 71 U. S. 119 , 71 U. S. 132 ; Tumey v. Ohio, 273 U. S. 510 , 273 U. S. 535 ; Hill v. Texas, 316 U. S. 400 , 316 U. S. 406 .
But the detention and trial of petitioners -- ordered by the
President in the declared exercise of his powers as Commander in
Chief of the Army in time of war and of grave public danger -- are
not to be set aside by the courts without the clear conviction that
they are in conflict with the Constitution or laws of Congress
constitutionally enacted.

															Congress and the President, like the courts, possess no power
not derived from the Constitution. But one of Page 317 U. S. 26 the objects of the Constitution, as declared by its preamble, is
to "provide for the common defence." As a means to that end, the
Constitution gives to Congress the power to "provide for the common
Defence," Art. I, § 8, cl. 1; "To raise and support Armies," "To
provide and maintain a Navy," Art. I, § 8, cl. 12, 13, and "To make
Rules for the Government and Regulation of the land and naval
Forces," Art. I, § 8, cl. 14. Congress is given authority "To
declare War, grant Letters of Marque and Reprisal, and make Rules
concerning Captures on Land and Water," Art. I, § 8, cl. 11, and
"To define and punish Piracies and Felonies committed on the high
Seas, and Offences against the Law of Nations," Art. I, § 8, cl.
10. And finally, the Constitution authorizes Congress

															"To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States,
or in any Department or Officer thereof."

															Art. I, § 8, cl. 18.

															The Constitution confers on the President the "executive Power,"
Art. II, § 1, cl. 1, and imposes on him the duty to "take Care that
the Laws be faithfully executed." Art. II, § 3. It makes him the
Commander in Chief of the Army and Navy, Art. II, § 2, cl. 1, and
empowers him to appoint and commission officers of the United
States. Art. II, § 3, cl. 1.

															The Constitution thus invests the President, as Commander in
Chief, with the power to wage war which Congress has declared, and
to carry into effect all laws passed by Congress for the conduct of
war and for the government and regulation of the Armed Forces, and
all laws defining and punishing offenses against the law of
nations, including those which pertain to the conduct of war.

															By the Articles of War, 10 U.S.C. §§ 1471-1593, Congress has
provided rules for the government of the Army. It has provided for
the trial and punishment, by courts Page 317 U. S. 27 martial, of violations of the Articles by members of the armed
forces and by specified classes of persons associated or serving
with the Army. Arts. 1, 2. But the Articles also recognize the
"military commission" appointed by military command as an
appropriate tribunal for the trial and punishment of offenses
against the law of war not ordinarily tried by court martial. See Arts. 12, 15. Articles 38 and 46 authorize the
President, with certain limitations, to prescribe the procedure for
military commissions. Articles 81 and 82 authorize trial, either by
court martial or military commission, of those charged with
relieving, harboring or corresponding with the enemy and those
charged with spying. And Article 15 declares that

															"the provisions of these articles conferring jurisdiction upon
courts martial shall not be construed as depriving military
commissions . . . or other military tribunals of concurrent
jurisdiction in respect of offenders or offenses that, by statute
or by the law of war may be triable by such military commissions .
. . or other military tribunals."

															Article 2 includes among those persons subject to military law
the personnel of our own military establishment. But this, as
Article 12 provides, does not exclude from that class "any other
person who by the law of war is subject to trial by military
tribunals" and who, under Article 12, may be tried by court martial
or under Article 15 by military commission.

															Similarly, the Espionage Act of 1917, which authorizes trial in
the district courts of certain offenses that tend to interfere with
the prosecution of war, provides that nothing contained in the act
"shall be deemed to limit the jurisdiction of the general
courts-martial, military commissions, or naval courts-martial." 50
U.S.C. § 38.

															From the very beginning of its history, this Court has
recognized and applied the law of war as including that part of the
law of nations which prescribes, for the conduct Page 317 U. S. 28 of war, the status, rights and duties of enemy nations, as well
as of enemy individuals. [ Footnote
2/5 ] By the Articles of War, and especially Article 15,
Congress has explicitly provided, so far as it may constitutionally
do so, that military tribunals shall have jurisdiction to try
offenders or offenses against the law of war in appropriate cases.
Congress, in addition to making rules for the government of our
Armed Forces, has thus exercised its authority to define and punish
offenses against the law of nations by sanctioning, within
constitutional limitations, the jurisdiction of military
commissions to try persons for offenses which, according to the
rules and precepts of the law of nations, and more particularly the
law of war, are cognizable by such tribunals. And the President, as
Commander in Chief, by his Proclamation in time of war, has invoked
that law. By his Order creating the present Commission, he has
undertaken to exercise the authority conferred upon him by
Congress, and also such authority as the Constitution itself gives
the Commander in Chief, to direct the performance of those
functions which may constitutionally be performed by the military
arm of the nation in time of war.

															An important incident to the conduct of war is the adoption of
measures by the military command not only to repel and defeat the
enemy, but to seize and subject to disciplinary measures those
enemies who, in their attempt to thwart or impede our military
effort, have violated the law Page 317 U. S. 29 of war. 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. We are
concerned only with the question whether it is within the
constitutional power of the National Government to place
petitioners upon trial before a military commission for the
offenses with which they are charged. We must therefore first
inquire whether any of the acts charged is an offense against the
law of war cognizable before a military tribunal, and, if so,
whether the Constitution prohibits the trial. We may assume that
there are acts regarded in other countries, or by some writers on
international law, as offenses against the law of war which would
not be triable by military tribunal here, either because they are
not recognized by our courts as violations of the law of war or
because they are of that class of offenses constitutionally triable
only by a jury. It was upon such grounds that the Court denied the
right to proceed by military tribunal in Ex parte Milligan,
supra. But, as we shall show, these petitioners were charged
with an offense against the law of war which the Constitution does
not require to be tried by jury.

															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. United States v.
Smith , 5 Wheat. 153; See The Marianna
Flora , 11 Wheat. 1, 24 U. S.
40 -41; Page 317 U. S. 30 United States v. Brig Malek
Adhel , 2 How. 210, 43 U. S. 232 ; The Ambrose Light, 25 F. 408, 423-28; 18 U.S.C. § 481.
[ Footnote 2/6 ] Similarly, by the
reference in the 15th Article of War to "offenders or offenses that
. . . by the law of war may be triable by such military
commissions," Congress has incorporated by reference, as within the
jurisdiction of military commissions, all offenses which are
defined as such by the law of war ( compare 61 U.
S. Hoover, 20 How. 65, 61 U. S. 82 ), and
which may constitutionally be included within that jurisdiction.
Congress had the choice of crystallizing in permanent form and in
minute detail every offense against the law of war, or of adopting
the system of common law applied by military tribunals so far as it
should be recognized and deemed applicable by the courts. It chose
the latter course.

															By universal agreement and practice, the law of war draws a
distinction between the armed forces and the peaceful populations
of belligerent nations, [ Footnote
2/7 ] and also between Page 317 U. S. 31 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. [ Footnote
2/8 ] 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. See Winthrop, Military Law,2d ed., pp. 11997,
1219-21; Instructions for the Government of Armies of the United
States in the Field, approved by the President, General Order No.
100, April 24, 1863, §§ IV and V.

															Such was the practice of our own military authorities before the
adoption of the Constitution, [ Footnote
2/9 ] and during the Mexican and Civil Wars. [ Footnote 2/10 ] Page 317 U. S. 32 Paragraph 83 of General Order No. 100 of April 24, 1863,
directed that:

															"Scouts or single soldiers, if disguised in the dress of the
country, or in the uniform of the army hostile to their own,
employed in obtaining information, if found within or lurking about
the lines of the captor, are treated as spies, and suffer
death."

															And Paragraph Page 317 U. S. 33 84, that

															"Armed prowlers, by whatever names they may be called, or
persons of the enemy's territory, who steal within the lines of the
hostile army for the purpose of robbing, killing, or of destroying
bridges, roads, or canals, or of robbing or destroying the mail, or
of cutting the telegraph wires, are not entitled to the privileges
of the prisoner of war. [ Footnote
2/11 ]"

															These and related provisions have Page 317 U. S. 34 been continued in substance by the Rules of Land Warfare
promulgated by the War Department for the guidance of the
Army.Rules of 1914, Par. 369-77; Rules of 1940, Par. 345-57.
Paragraph 357 of the 1940 Rules provides that "All war crimes are
subject to the death penalty, although a lesser penalty may be
imposed." Paragraph 8 (1940) divides the enemy population into
"armed forces" and "peaceful population," and Paragraph 9 names as
distinguishing characteristics of lawful belligerents that they
"carry arms openly" and "have a fixed distinctive emblem."
Paragraph 348 declares that "persons who take up arms and commit
hostilities" without having the means of identification prescribed
for belligerents are punishable as "war criminals." Paragraph 351
provides that "men and bodies of men, who, without being lawful
belligerents" "nevertheless commit hostile acts of any kind" are
not entitled to the privileges of prisoners of war if captured, and
may be tried by military commission and punished by death or lesser
punishment. And paragraph 352 provides that

															"armed prowlers . . . or persons of the enemy territory who
steal within the lines of the hostile army for the purpose of
robbing, killing, or of destroying bridges, roads, or canals, of
robbing or destroying the mail, or of cutting the telegraph wires,
are not entitled to be treated as prisoners of war."

															As is evident from reading these and related Paragraphs 345-347,
the specified violations are intended to be only illustrative of
the applicable principles of the common law of war, and not an
exclusive enumeration of the punishable acts recognized as such by
that law. The definition of lawful belligerents by Paragraph 9 is
that adopted by Article 1, Annex to Hague Convention No. IV of
October 18, 1907, to which the United States was a signatory and
which was ratified by the Senate in 1909. 36 Stat. 2295. The
preamble to the Convention declares: Page 317 U. S. 35 "Until a more complete code of the laws of war has been issued,
the High Contracting Parties deem it expedient to declare that, in
cases not included in the Regulations adopted by them, the
inhabitants and the belligerents remain under the protection and
the rule of the principles of the law of nations, as they result
from the usages established among civilized peoples, from the laws
of humanity, and the dictates of the public conscience."

															Our Government, by thus defining lawful belligerents entitled to
be treated as prisoners of war, has recognized that there is a
class of unlawful belligerents not entitled to that privilege,
including those who, though combatants, do not wear "fixed and
distinctive emblems." And, by Article 15 of the Articles of War,
Congress has made provision for their trial and punishment by
military commission, according to "the law of war."

															By a long course of practical administrative construction by its
military authorities, our Government has likewise recognized that
those who, during time of war, pass surreptitiously from enemy
territory into our own, discarding their uniforms upon entry, for
the commission of hostile acts involving destruction of life or
property, have the status of unlawful combatants punishable as such
by military commission. This precept of the law of war has been so
recognized in practice both here and abroad, and has so generally
been accepted as valid by authorities on international law
[ Footnote 2/12 ] that we think it
must be regarded as Page 317 U. S. 36 a rule or principle of the law of war recognized by this
Government by its enactment of the Fifteenth Article of War.

															Specification 1 of the first charge is sufficient to charge all
the petitioners with the offense of unlawful belligerency, trial of
which is within the jurisdiction of the Commission, and the
admitted facts affirmatively show that the charge is not merely
colorable or without foundation.

															Specification 1 states that petitioners,

															"being enemies of the United States and acting for . . . the
German Reich, a belligerent enemy nation, secretly and covertly
passed, in civilian dress, contrary to the law of war, through the
military and naval lines and defenses of the United States . . .
and went behind such lines, contrary to the law of war, in civilian
dress . . . for the purpose of committing . . . hostile acts, and,
in particular, to destroy certain war industries, war utilities and
war materials within the United States."

															This specification so plainly alleges violation of the law of
war as to require but brief discussion of petitioners' contentions.
As we have seen, entry upon our territory Page 317 U. S. 37 in time of war by enemy belligerents, including those acting
under the direction of the armed forces of the enemy, for the
purpose of destroying property used or useful in prosecuting the
war, is a hostile and warlike act. It subjects those who
participate in it without uniform to the punishment prescribed by
the law of war for unlawful belligerents. It is without
significance that petitioners were not alleged to have borne
conventional weapons or that their proposed hostile acts did not
necessarily contemplate collision with the Armed Forces of the
United States. Paragraphs 351 and 352 of the Rules of Land Warfare,
already referred to, plainly contemplate that the hostile acts and
purposes for which unlawful belligerents may be punished are not
limited to assaults on the Armed Forces of the United States.
Modern warfare is directed at the destruction of enemy war supplies
and the implements of their production and transportation, quite as
much as at the armed forces. Every consideration which makes the
unlawful belligerent punishable is equally applicable whether his
objective is the one or the other. The law of war cannot rightly
treat those agents of enemy armies who enter our territory, armed
with explosives intended for the destruction of war industries and
supplies, as any the less belligerent enemies than are agents
similarly entering for the purpose of destroying fortified places
or our Armed Forces. 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.

															Citizenship in the United States of an enemy belligerent does
not relieve him from the consequences of a belligerency which is
unlawful because in violation of the law of war. Citizens who
associate themselves with the military arm of the enemy government,
and, with its aid, Page 317 U. S. 38 guidance and direction, enter this country bent on hostile acts,
are enemy belligerents within the meaning of the Hague Convention
and the law of war. Cf. Gates v. Goodloe, 101 U.
S. 612 , 101 U. S. 615 , 101 U. S.
617 -18. It is as an enemy belligerent that petitioner
Haupt is charged with entering the United States, and unlawful
belligerency is the gravamen of the offense of which he is
accused.

															Nor are petitioners any the less belligerents if, as they argue,
they have not actually committed or attempted to commit any act of
depredation or entered the theatre or zone of active military
operations. The argument leaves out of account the nature of the
offense which the Government charges and which the Act of Congress,
by incorporating the law of war, punishes. It is that each
petitioner, in circumstances which gave him the status of an enemy
belligerent, passed our military and naval lines and defenses or
went behind those lines, in civilian dress and with hostile
purpose. The offense was complete when, with that purpose, they
entered -- or, having so entered, they remained upon -- our
territory in time of war without uniform or other appropriate means
of identification. For that reason, even when committed by a
citizen, the offense is distinct from the crime of treason defined
in Article III, § 3 of the Constitution, since the absence of
uniform essential to one is irrelevant to the other. Cf. Moran
v. Devine, 237 U. S. 632 ; Albrecht v. United States, 273 U. S.
1 , 273 U. S.
11 -12.

															But petitioners insist that, even if the offenses with which
they are charged are offenses against the law of war, their trial
is subject to the requirement of the Fifth Amendment that no person
shall be held to answer for a capital or otherwise infamous crime
unless on a presentment or indictment of a grand jury, and that
such trials by Article III, § 2, and the Sixth Amendment must be by
jury in a civil court. Before the Amendments, § 2 of Article
III, Page 317 U. S. 39 the Judiciary Article, had provided, "The Trial of all Crimes,
except in Cases of Impeachment, shall be by Jury," and had directed
that "such Trial shall be held in the State where the said Crimes
shall have been committed."

															Presentment by a grand jury and trial by a jury of the vicinage
where the crime was committed were, at the time of the adoption of
the Constitution, familiar parts of the machinery for criminal
trials in the civil courts. But they were procedures unknown to
military tribunals, which are not courts in the sense of the
Judiciary Article, Ex parte
Vallandigham , 1 Wall. 243; In re Vidal, 179 U. S. 126 ; cf. Williams v. United States, 289 U.
S. 553 , and which, in the natural course of events, are
usually called upon to function under conditions precluding resort
to such procedures. As this Court has often recognized, it was not
the purpose or effect of § 2 of Article III, read in the light of
the common law, to enlarge the then existing right to a jury trial.
The object was to preserve unimpaired trial by jury in all those
cases in which it had been recognized by the common law and in all
cases of a like nature as they might arise in the future, District of Columbia v. Colts, 282 U. S.
63 , but not to bring within the sweep of the guaranty
those cases in which it was then well understood that a jury trial
could not be demanded as of right.

															The Fifth and Sixth Amendments, while guaranteeing the
continuance of certain incidents of trial by jury which Article
III, § 2 had left unmentioned, did not enlarge the right to jury
trial as it had been established by that Article. Callan v.
Wilson, 127 U. S. 540 , 127 U. S. 549 .
Hence, petty offenses triable at common law without a jury may be
tried without a jury in the federal courts, notwithstanding Article
III, § 2, and the Fifth and Sixth Amendments. Schick v. United
States, 195 U. S. 65 ; District of
Columbia Page 317 U. S. 40 v. Clawans, 300 U. S. 617 .
Trial by jury of criminal contempts may constitutionally be
dispensed with in the federal courts in those cases in which they
could be tried without a jury at common law. Ex parte
Terry, 128 U. S. 289 , 128 U. S.
302 -304; Savin, Petitioner, 131 U.
S. 267 , 131 U. S. 277 ; In re Debs, 158 U. S. 564 , 158 U. S.
594 -596; United States v. Shipp, 203 U.
S. 563 , 203 U. S. 572 ; Blackmer v. United States, 284 U.
S. 421 , 284 U. S. 440 ; Nye v. United States, 313 U. S. 33 , 313 U. S. 48 ; See United States v. Hudson and
Goodwin , 7 Cranch 32, 11
U. S. 34 . Similarly, an action for debt to enforce a
penalty inflicted by Congress is not subject to the constitutional
restrictions upon criminal prosecutions. United States v.
Zucker, 161 U. S. 475 ; United States v. Regan, 232 U. S. 37 , and
cases cited.

															All these are instances of offenses committed against the United
States, for which a penalty is imposed, but they are not deemed to
be within Article III, § 2, or the provisions of the Fifth and
Sixth Amendments relating to "crimes" and "criminal prosecutions."
In the light of this long-continued and consistent interpretation,
we must conclude that § 2 of Article III and the Fifth and Sixth
Amendments cannot be taken to have extended the right to demand a
jury to trials by military commission, or to have required that
offenses against the law of war not triable by jury at common law
be tried only in the civil courts.

															The fact that "cases arising in the land or naval forces" are
excepted from the operation of the Amendments does not militate
against this conclusion. Such cases are expressly excepted from the
Fifth Amendment, and are deemed excepted by implication from the
Sixth. Ex parte Milligan, supra, 71 U. S. 123 , 71 U. S. 138 -139.
It is argued that the exception, which excludes from the Amendment
cases arising in the armed forces, has also, by implication,
extended its guaranty to all other cases; that, since petitioners,
not being members of the Armed Forces of the United States, are not
within the exception, the Amendment operates to Page 317 U. S. 41 give to them the right to a jury trial. But we think this
argument misconceives both the scope of the Amendment and the
purpose of the exception.

															We may assume, without deciding, that a trial prosecuted before
a military commission created by military authority is not one
"arising in the land . . . forces," when the accused is not a
member of or associated with those forces. But even so, the
exception cannot be taken to affect those trials before military
commissions which are neither within the exception nor within the
provisions of Article III, § 2, whose guaranty the Amendments did
not enlarge. No exception is necessary to exclude from the
operation of these provisions cases never deemed to be within their
terms. An express exception from Article III, § 2, and from the
Fifth and Sixth Amendments, of trials of petty offenses and of
criminal contempts has not been found necessary in order to
preserve the traditional practice of trying those offenses without
a jury. It is no more so in order to continue the practice of
trying, before military tribunals without a jury, offenses
committed by enemy belligerents against the law of war.

															Section 2 of the Act of Congress of April 10, 1806, 2 Stat. 371,
derived from the Resolution of the Continental Congress of August
21, 1776, [ Footnote 2/13 ] imposed
the death penalty on alien spies "according to the law and usage of
nations, by sentence of a general court martial." This enactment
must be regarded as a contemporary construction of both Article
III, § 2, and the Amendments as not foreclosing trial by military
tribunals, without a jury, of offenses against the law of war
committed by enemies not in or associated with our Armed Forces. It
is a construction of the Constitution which has been followed since
the founding of our Government, and is now continued in the 82nd
Article of War. Such a construction is entitled to Page 317 U. S. 42 the greatest respect. Stuart v.
Laird , 1 Cranch 299, 5
U. S. 309 ; Field v. Clark, 143 U.
S. 649 , 143 U. S. 691 ; United States v. Curtiss-Wright Corp., 299 U.
S. 304 , 299 U. S. 328 .
It has not hitherto been challenged, and, so far as we are advised,
it has never been suggested in the very extensive literature of the
subject that an alien spy, in time of war, could not be tried by
military tribunal without a jury. [ Footnote 2/14 ] Page 317 U. S. 43 The exception from the Amendments of "cases arising in the land
or naval forces" was not aimed at trials by military tribunals,
without a jury, of such offenses against the law of war. Its
objective was quite different -- to authorize the trial by court
martial of the members of our Armed Forces for all that class of
crimes which, under the Fifth and Sixth Amendments, might otherwise
have been deemed triable in the civil courts. The cases mentioned
in the exception are not restricted to those involving offenses
against the law of war alone, but extend to trial of all offenses,
including crimes which were of the class traditionally triable by
jury at common law. Ex parte Mason, 105 U.
S. 696 ; Kahn v. Anderson, 255 U. S.
1 , 255 U. S. 9 ; cf. Caldwell v. Parker, 252 U. S. 376 . Page 317 U. S. 44 Since the Amendments, like § 2 of Article III, do not preclude
all trials of offenses against the law of war by military
commission without a jury when the offenders are aliens not members
of our Armed Forces, it is plain that they present no greater
obstacle to the trial in like manner of citizen enemies who have
violated the law of war applicable to enemies. Under the original
statute authorizing trial of alien spies by military tribunals, the
offenders were outside the constitutional guaranty of trial by jury
not because they were aliens, but only because they had violated
the law of war by committing offenses constitutionally triable by
military tribunal.

															We cannot say that Congress, in preparing the Fifth and Sixth
Amendments, intended to extend trial by jury to the cases of alien
or citizen offenders against the law of war otherwise triable by
military commission, while withholding it from members of our own
armed forces charged with infractions of the Articles of War
punishable by death. It is equally inadmissible to construe the
Amendments -- Page 317 U. S. 45 whose primary purpose was to continue unimpaired presentment by
grand jury and trial by petit jury in all those cases in which they
had been customary -- as either abolishing all trials by military
tribunals, save those of the personnel of our own armed forces, or,
what in effect comes to the same thing, as imposing on all such
tribunals the necessity of proceeding against unlawful enemy
belligerents only on presentment and trial by jury. We conclude
that the Fifth and Sixth Amendments did not restrict whatever
authority was conferred by the Constitution to try offenses against
the law of war by military commission, and that petitioners,
charged with such an offense not required to be tried by jury at
common law, were lawfully placed on trial by the Commission without
a jury.

															Petitioners, and especially petitioner Haupt, stress the
pronouncement of this Court in the Milligan case, supra, p. 71 U. S. 121 ,
that the law of war

															"can never be applied to citizens in states which have upheld
the authority of the government, and where the courts are open, and
their process unobstructed."

															Elsewhere in its opinion, at pp. 71 U. S. 118 , 71 U. S. 121 -122
and 71 U. S. 131 , the
Court was at pains to point out that Milligan, a citizen twenty
years resident in Indiana, who had never been a resident of any of
the states in rebellion, was not an enemy belligerent either
entitled to the status of a prisoner of war or subject to the
penalties imposed upon unlawful belligerents. We construe the
Court's statement as to the inapplicability of the law of war to
Milligan's case as having particular reference to the facts before
it. From them, the Court concluded that Milligan, not being a part
of or associated with the armed forces of the enemy, was a
nonbelligerent, not subject to the law of war save as -- in
circumstances found not there to be present, and not involved here
-- martial law might be constitutionally established.

															The Court's opinion is inapplicable to the case presented by the
present record. We have no occasion now to define Page 317 U. S. 46 with meticulous care the ultimate boundaries of the jurisdiction
of military tribunals to try persons according to the law of war.
It is enough that petitioners here, upon the conceded facts, were
plainly within those boundaries, and were held in good faith for
trial by military commission, charged with being enemies who, with
the purpose of destroying war materials and utilities, entered, or
after entry remained in, our territory without uniform -- an
offense against the law of war. We hold only that those particular
acts constitute an offense against the law of war which the
Constitution authorizes to be tried by military commission.

															Since the first specification of Charge I sets forth a violation
of the law of war, we have no occasion to pass on the adequacy of
the second specification of Charge I, or to construe the 81st and
82nd Articles of War for the purpose of ascertaining whether the
specifications under Charges II and III allege violations of those
Articles, or whether, if so construed, they are constitutional. McNally v. Hill, 293 U. S. 131 .

															There remains the contention that the President's Order of July
2, 1942, so far as it lays down the procedure to be followed on the
trial before the Commission and on the review of its findings and
sentence, and the procedure in fact followed by the Commission, are
in conflict with Articles of War 38, 43, 46, 50 1/2 and 70.
Petitioners argue that their trial by the Commission, for offenses
against the law of war and the 81st and 82nd Articles of War, by a
procedure which Congress has prohibited would invalidate any
conviction which could be obtained against them, and renders their
detention for trial likewise unlawful ( see McClaughry v.
Deming, 186 U. S. 49 ; United States v. Brown, 206 U. S. 240 , 206 U. S. 244 ; Runkle v. United States, 122 U. S. 543 , 122 U. S.
555 -556; Dynes v.
Hoover , 20 How. 65, 61 U. S. 80 -81);
that the President's Order prescribes such an unlawful Page 317 U. S. 47 procedure, and that the secrecy surrounding the trial and all
proceedings before the Commission, as well as any review of its
decision, will preclude a later opportunity to test the lawfulness
of the detention.

															Petitioners do not argue, and we do not consider, the question
whether the President is compelled by the Articles of War to afford
unlawful enemy belligerents a trial before subjecting them to
disciplinary measures. Their contention is that, if Congress has
authorized their trial by military commission upon the charges
preferred -- violations of the law of war and the 81st and 82nd
Articles of War -- it has by the Articles of War prescribed the
procedure by which the trial is to be conducted, and that, since
the President has ordered their trial for such offenses by military
commission, they are entitled to claim the protection of the
procedure which Congress has commanded shall be controlling.

															We need not inquire whether Congress may restrict the power of
the Commander in Chief to deal with enemy belligerents. For the
Court is unanimous in its conclusion that the Articles in question
could not at any stage of the proceedings afford any basis for
issuing the writ. But a majority of the full Court are not agreed
on the appropriate grounds for decision. Some members of the Court
are of opinion that Congress did not intend the Articles of War to
govern a Presidential military commission convened for the
determination of questions relating to admitted enemy invaders, and
that the context of the Articles makes clear that they should not
be construed to apply in that class of cases. Others are of the
view that -- even though this trial is subject to whatever
provisions of the Articles of War Congress has in terms made
applicable to "commissions" -- the particular Articles in question,
rightly construed, do not foreclose the procedure prescribed by the
President or that shown to have been employed Page 317 U. S. 48 by the Commission, in a trial of offenses against the law of war
and the 81st and 82nd Articles of War, by a military commission
appointed by the President.

															Accordingly, we conclude that Charge I, on which petitioners
were detained for trial by the Military Commission, alleged an
offense which the President is authorized to order tried by
military commission; that his Order convening the Commission was a
lawful order, and that the Commission was lawfully constituted;
that the petitioners were held in lawful custody, and did not show
cause for their discharge. It follows that the orders of the
District Court should be affirmed, and that leave to file petitions
for habeas corpus in this Court should be denied.

															MR. JUSTICE MURPHY took no part in the consideration or decision
of these cases.

															[ Footnote 2/1 ]

															From June 12 to June 18, 1942, Amagansett Beach, New York, and
Ponte Vedra Beach, Florida, were within the area designated as the
Eastern Defense Command of the United States Army, and subject to
the provisions of a proclamation dated May 16, 1942, issued by
Lieutenant General Hugh A. Drum, United States Army, Commanding
General, Eastern Defense Command ( see 7 Federal Register
3830). On the night of June 12-13, 1942, the waters around
Amagansett Beach, Long Island, were within the area comprising the
Eastern Sea Frontier, pursuant to the orders issued by Admiral
Ernest J. King, Commander in Chief of the United States Fleet and
Chief of Naval Operations. On the night of June 16-17, 1942, the
waters around Ponte Vedra Beach, Florida, were within the area
comprising the Gulf Sea Frontier, pursuant to similar orders.

															On the night of June 12-13, 1942, members of the United States
Coast Guard, unarmed, maintained a beach patrol along the beaches
surrounding Amagansett, Long Island, under written orders
mentioning the purpose of detecting landings. On the night of June
17-18, 1942, the United States Army maintained a patrol of the
beaches surrounding and including Ponte Vedra Beach, Florida, under
written orders mentioning the purpose of detecting the landing of
enemy agents from submarines.

															[ Footnote 2/2 ]

															7 Federal Register 5103.

															[ Footnote 2/3 ]

															7 Federal Register 5101.

															[ Footnote 2/4 ]

															As appears from the stipulation, a defense offered before the
Military Commission was that petitioners had had no intention to
obey the orders given them by the officer of the German High
Command.

															[ Footnote 2/5 ] Talbot v.
Janson , 3 Dall. 133, 3 U.S. 153 , 3 U.S. 159 -61; Talbot v.
Seeman , 1 Cranch 1, 5 U.
S. 441 ; Maley v.
Shattuck , 3 Cranch 458, 7 U. S. 488 ; Fitzsimmons v. Newport Ins.
Co. , 4 Cranch 185, 8 U. S. 199 ; The Rapid , 8
Cranch 155, 12 U. S.
159 -164; The
St.Lawrence , 9 Cranch 120, 13 U. S. 122 ; Thirty Hogsheads of Sugar v.
Boyle , 9 Cranch 191, 13 U. S.
197 -98; The Anne , 3
Wheat. 435, 16 U. S.
447 -48; United States v.
Reading , 18 How. 1, 59 U. S. 10 ; Prize Cases , 2
Black 635, 67 U. S.
666 -67, 67 U. S. 687 ; The Venice , 2
Wall. 258, 69 U. S. 274 ; The William
Bagaley , 5 Wall. 377; Miller v.
United States , 11 Wall. 268; Coleman v.
Tennessee, 97 U. S. 509 , 97 U. S. 517 ; United States v. Pacific Railroad, 120 U.
S. 227 , 120 U. S. 233 ; Juragua Iron Co. v. United States, 212 U.
S. 297 .

															[ Footnote 2/6 ] Compare 28 U.S.C. § 41(17), conferring on the federal
courts jurisdiction over suits brought by an alien for a tort "in
violation of the laws of nations"; 28 U.S.C. § 341, conferring upon
the Supreme Court such jurisdiction of suits against ambassadors as
a court of law can have "consistently with the law of nations"; 28
U.S.C. § 462, regulating the issuance of habeas corpus where the
prisoner claims some right, privilege or exemption under the order
of a foreign state, "the validity and effect whereof depend upon
the law of nations"; 15 U.S.C. §§ 606(b) and 713(b), authorizing
certain loans to foreign governments, provided that "no such loans
shall be made in violation of international law as interpreted by
the Department of State."

															[ Footnote 2/7 ]

															Hague Convention No. IV of October 18, 1907, 36 Stat. 2295,
Article I of the Annex to which defines the persons to whom
belligerent rights and duties attach, was signed by 44 nations. See also Great Britain, War Office, Manual of Military Law
(1929) ch. xiv, §§ 17-19; German General Staff, Kriegsbrauch in
Landkriege (1902) ch. 1; 7 Moore, Digest of International Law, §
1109; 2 Hyde, International Law (1922) § 653-54; 2 Oppenheim,
International Law (6th ed.1940) § 107; Bluntschli, Droit
International (5th ed. tr. Lardy) §§ 531-32; 4 Calvo, Le Droit
International Theorique et Pratique (5th ed. 1896) § 2034-35.

															[ Footnote 2/8 ]

															Great Britain, War Office, Manual of Military Law, ch. xiv, §§
445-451; Regolamento di Servizio in Guerra, § 133, 3 Leggi e
Decreti del Regno d'Italia (1896) 3184; 7 Moore, Digest of
International Law, § 1109; 2 Hyde, International Law, §§ 654, 652;
2 Halleck, International Law (4th ed.1908) § 4; 2 Oppenheim,
International Law, § 254; Hall, International Law, §§ 127, 135;
Baty Morgan, War, Its Conduct and Legal Results (1915) 172;
Bluntschli, Droit International, §§ 570 bis.

															[ Footnote 2/9 ]

															On September 29, 1780, Major John Andre, Adjutant-General to the
British Army, was tried by a "Board of General Officers" appointed
by General Washington, on a charge that he had come within the
lines for an interview with General Benedict Arnold and had been
captured while in disguise and traveling under an assumed name. The
Board found that the facts charged were true, and that, when
captured Major Andre had in his possession papers containing
intelligence for the enemy, and reported their conclusion that

															"Major Andre . . . ought to be considered as a Spy from the
enemy, and that, agreeably to the law and usage of nations . . . ,
he ought to suffer death."

															Major Andre was hanged on October 2, 1780. Proceedings of a
Board of General Officers Respecting Major John Andre, Sept. 29,
1780, printed at Philadelphia in 1780.

															[ Footnote 2/10 ]

															During the Mexican War, military commissions were created in a
large number of instances for the trial of various offenses. See General Orders cited in 2 Winthrop, Military Law (2d
ed. 1896) p. 1298, note 1.

															During the Civil War, the military commission was extensively
used for the trial of offenses against the law of war. Among the
more significant cases for present purposes are the following:

															On May 22, 1865, T. E. Hogg and others were tried by a military
commission, for "violations of the laws and usages of civilized
war," the specifications charging that the accused "being
commissioned, enrolled, enlisted or engaged" by the Confederate
Government, came on board a United States merchant steamer in the
port of Panama "in the guise of peaceful passengers" with the
purpose of capturing the vessel and converting her into a
Confederate cruiser. The Commission found the accused guilty and
sentenced them to be hanged. The reviewing authority affirmed the
judgments, writing an extensive opinion on the question whether
violations of the law of war were alleged, but modified the
sentences to imprisonment for life and for various periods of
years. Dept. of the Pacific, G.O. No. 52, June 27, 1865.

															On January 17, 1865, John Y. Beall was tried by a military
commission for "violation of the laws of war." The opinion by the
reviewing authority reveals that Beall, holding a commission in the
Confederate Navy, came on board a merchant vessel at a Canadian
port in civilian dress and, with associates, took possession of the
vessel in Lake Erie; that, also in disguise, he unsuccessfully
attempted to derail a train in New York State, and to obtain
military information. His conviction by the Commission was affirmed
on the ground that he was both a spy and a "guerrilla," and he was
sentenced to be hanged. Dept. of the East, G.O. No. 14, Feb. 14,
1865.

															On January 17, 1865, Robert C. Kennedy, a Captain of the
Confederate Army, who was shown to have attempted, while in
disguise, to set fire to the City of New York, and to have been
seen in disguise in various parts of New York State, was convicted
on charges of acting as a spy and violation of the law of war "in
undertaking to carry on irregular and unlawful warfare." He was
sentenced to be hanged, and the sentence was confirmed by the
reviewing authority. Dept. of the East, G.O. No. 24, March 20,
1865.

															On September 19, 1865, William Murphy, "a rebel emissary in the
employ of and colleagued with rebel enemies," was convicted by a
military commission of "violation of the laws and customs of war"
for coming within the lines and burning a United States steamboat
and other property. G.C.M.O. No. 107, April 18, 1866.

															Soldiers and officers "now or late of the Confederate Army" were
tried and convicted by military commission for "being secretly
within the lines of the United States forces," James Hamilton,
Dept. of the Ohio, G.O. No. 153, Sept. 18, 1863; for "recruiting
men within the lines," Daniel Davis, G.O. No. 397, Dec. 18, 1863,
and William F. Corbin and T. G. McGraw, G O. No. 114, May 4, 1863,
and for "lurking about the posts, quarters, fortifications and
encampments of the armies of the United States," although not "as a
spy," Augustus A. Williams, Middle Dept., G.O. No. 34, May 5, 1864.
For other cases of violations of the law of war punished by
military commissions during the Civil War, see 2 Winthrop,
Military Laws and Precedents (2d ed. 1896) 1310-11.

															[ Footnote 2/11 ] See also Paragraph 100:

															"A messenger or agent who attempts to steal through the
territory occupied by the enemy, to further, in any manner, the
interests of the enemy, if captured, is not entitled to the
privileges of the prisoner of war, and may be dealt with according
to the circumstances of the case." Compare Paragraph 101.

															[ Footnote 2/12 ]

															Great Britain, War Office, Manual of Military Law (1929) § 45,
lists a large number of acts which, when committed within enemy
lines by persons in civilian dress associated with or acting under
the direction of enemy armed forces, are "war crimes." The list
includes: "damage to railways, war material, telegraph, or other
means of communication, in the interest of the enemy. . . ."
Section 449 states that all "war crimes" are punishable by
death.

															Authorities on International Law have regarded as war criminals
such persons who pass through the lines for the purpose of (a)
destroying bridges, war materials, communication facilities, etc.:
2 Oppenheim, International Law (6th ed.1940) § 255; Spaight, Air
Power and War Rights (1924) 283; Spaight, War Rights on Land (1911)
110; Phillipson, International Law and the Great War (1915) 208;
Liszt, Das Volkerrecht (12 ed.1925), § 58(B) 4; (b) carrying
messages secretly: Hall, International Law (8th ed.1924) § 188;
Spaight, War Rights on Land 215; 3 Merignhac, Droit Public
International (1912) 296-97; Bluntschli, Droit International
Codifie (5th ed. tr. Lardy) § 639; 4 Calvo, Le Droit International
Theorique et Pratique (5th ed. 1896) § 2119; (c) any hostile act: 2
Winthrop, Military Law and Precedents, (2nd ed. 1896) 1224. Cf. Lieber, Guerrilla Parties (1862), 2 Miscellaneous
Writings (1881) 288.

															These authorities are unanimous in stating that a soldier in
uniform who commits the acts mentioned would be entitled to
treatment as a prisoner of war; it is the absence of uniform that
renders the offender liable to trial for violation of the laws of
war.

															[ Footnote 2/13 ] See Morgan, Court-Martial Jurisdiction over
Non-Military Persons under the Articles of War, 4 Minnesota L.Rev.
79, 107-109.

															[ Footnote 2/14 ]

															In a number of cases during the Revolutionary War, enemy spies
were tried and convicted by military tribunals: (1) Major John
Andre, Sept. 29, 1780, see 317 U.S.
1 fn2/9|>note 9 supra. (2) Thomas Shanks was
convicted by a "Board of General Officers" at Valley Forge on June
3, 1778, for "being a Spy in the Service of the Enemy," and
sentenced to be hanged. 12 Writings of Washington (Bicentennial
Comm'n ed.) 14. (3) Matthias Colbhart was convicted of "holding a
Correspondence with the Enemy" and "living as a Spy among the
Continental Troops" by a General Court Martial convened by order of
Major General Putnam on Jan. 13, 1778; General Washington, the
Commander in Chief, ordered the sentence of death to be executed,
12 Id. 449-50. (4) John Clawson, Ludwick Lasick, and
William Hutchinson were convicted of "lurking as spies in the
Vicinity of the Army of the United States" by a General Court
Martial held on June 18, 1780. The death sentence was confirmed by
the Commander in Chief. 19 Id. 23. (5) David Farnsworth
and John Blair were convicted of "being found about the Encampment
of the United States as Spies" by a Division General Court Martial
held on Oct. 8, 1778 by order of Major General Gates. The death
sentence was confirmed by the Commander in Chief. 13 Id. 139-40. (6) Joseph Bettys was convicted of being "a Spy for General
Burgoyne" by coming secretly within the American lines, by a
General Court Martial held on April 6, 1778 by order of Major
General McDougall. The death sentence was confirmed by the
Commander in Chief. 15 Id. 364. (7) Stephen Smith was
convicted of "being a Spy" by a General Court Martial held on Jan.
6, 1778. The death sentence was confirmed by Major General
McDougall. Ibid. (8) Nathaniel Aherly and Reuben Weeks,
Loyalist soldiers, were sentenced to be hanged as spies.
Proceedings of a General Court Martial Convened at West Point
According to a General Order of Major General Arnold, Aug. 20-21,
1780 (National Archives, War Dept., Revolutionary War Records, MS
No. 31521). (9) Jonathan Loveberry, a Loyalist soldier, was
sentenced to be hanged as a spy. Proceedings of a General Court
Martial Convened at the Request of Major General Arnold at the
Township of Bedford, Aug. 30-31, 1780 ( Id., MS No. 31523).
He later escaped, 20 Writings of Washington 253n. (10) Daniel
Taylor, a lieutenant in the British Army, was convicted as a spy by
a general court martial convened on Oct. 14, 1777, by order of
Brigadier General George Clinton, and was hanged. 2 Public Papers
of George Clinton (1900) 443. (11) James Molesworth was convicted
as a spy and sentenced to death by a general court martial held at
Philadelphia, March 29, 1777; Congress confirmed the order of Major
General Gates for the execution of the sentence. 7 Journals of the
Continental Congress 210. See also cases of "M. A." and
"D.C.," G.O. Headquarters of General Sullivan, Providence, R.I.,
July 24, 1778, reprinted in Niles, Principles and Acts of the
Revolution (1822) 369; of Lieutenant Palmer, 9 Writings of
Washington, 56n; of Daniel Strang, 6 Id. 47n; of Edward
Hicks, 14 Id. 357; of John Mason and James Ogden, executed
as spies near Trenton, N.J., on Jan. 10, 1781, mentioned in Hatch,
Administration of the American Revolutionary Army (1904) 135 and
Van Doren, Secret History of the American Revolution (1941)
410.

															During the War of 1812, William Baker was convicted as a spy and
sentenced to be hanged, by a general court martial presided over by
Brigadier General Thomas A. Smith at Plattsburg, N.Y., on March 25,
1814. National Archives, War Dept., Judge Advocate General's
Office, Records of Courts Martial, MS No. O-13. William Utley,
tried as a spy by a court martial held at Plattsburg, March 3-5,
1814, was acquitted. Id. MS No. X-161. Elijah Clark was
convicted as a spy, and sentenced to be hanged, by a general court
martial held at Buffalo, N.Y., Aug. 5-8, 1812. He was ordered
released by President Madison on the ground that he was an American
citizen. Military Monitor, Vol. I, No. 23, Feb. 1, 1813, pp.
121-122; Maltby, Treatise on Courts Martial and Military Law (1813)
35-36.

															In 1862, Congress amended the spy statute to include "all
persons," instead of only aliens. 12 Stat. 339, 340; see
also 12 Stat. 731, 737. For the legislative history, see Morgan, Court-Martial Jurisdiction over Non-Military
Persons under the Articles of War, 4 Minnesota L.Rev. 79, 109-11.
During the Civil War, a number of Confederate officers and
soldiers, found within the Union lines in disguise, were tried and
convicted by military commission for being spies. Charles H.
Clifford, G.O. No. 135, May 18, 1863; William S. Waller, G.O. No.
269, Aug. 4, 1863; Alfred Yates and George W. Casey, G.O. No. 32,
Nov. 28, 1863; James R. Holton and James Taylor, G.C.M.O. No. 93,
May 13, 1864; James McGregory, G.C.M.O. No. 152, June 4, 1864; E.
S. Dodd, Dept. of Ohio, G.O. No. 3, Jan. 5, 1864. For other cases
of spies tried by military commission, see 2 Winthrop,
Military Law and Precedents, 1193 et seq.

Summary:
Here is a summary of the key points from the U.S. Supreme Court case Ex Parte Quirin (1942):

- The case involved a group of German saboteurs who entered the United States during World War II with the intention of carrying out attacks on American targets.
- The saboteurs, who were wearing German military uniforms and carrying explosives, were arrested and charged with violating the law of war.
- The main issue before the Court was whether the saboteurs could be tried by a military commission or if they had the right to access civil courts.
- The Court held that the President's Proclamation, which declared that individuals engaged in sabotage and similar acts during wartime would be subject to military jurisdiction, did not bar the saboteurs from accessing civil courts to challenge the applicability of the Proclamation to their cases.
- However, the Court ultimately upheld the jurisdiction of the military commission to try the saboteurs, citing the President's authority as Commander-in-Chief and the nature of the offenses committed.
- The Court's decision also discussed the historical precedent for trying spies and saboteurs by military commission during times of war, both in American history and under international law.