executive order re: military trials

[Arthur D. Wolf]

Dear Folks,

        First, the citation to Ex parte Quirin is 317 U.S. 1 (1942), which should
be contrasted with Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).  In
Milligan, the Supreme Court did not allow a civilian, unconnected with the
rebellion in the southern states,  to be tried by a military commission so
long as the civilian courts were open and martial law had not been
declared.  In contrast, Quirin upheld trial by military commission of
German soldiers who had landed in the US, discarded their uniforms, and
sought to sabotage war facilities.  They were charged with violating the
laws of war.

        Second, President Bush's executive order appears to fall in between
Milligan and Quirin.  Terrorists surely are not civilians unconnected to
any armed attack on the United States.  However, they are also not members
of the armed forces of another nation at war with the United States.
Whether they could be charged with violating the laws of war, within the
scope of Quirin, is an open question, although historically they probably
are outside the reach of the customary laws of war.  Recent changes in the
customary law of international terrorism may alter that limitation, making
them reachable through the Quirin analysis with some expansion of it.

        Third, the question of judicial review in civilian courts from the
judgments of such military commissions is complicated.  Through habeas
corpus, they probably could secure some form of judicial review, unless the
President may constitutionally suspend the writ in these cases (not likely
in my view).

        Finally, Quirin appears to uphold the power of the President to create
military commissions under his power as commander in chief of the armed
forces.  However, in Quirin, Congress had previously authorized the
creation of such commissions, so perhaps that question is open too.


                                        Art Wolf
                                        Western New England College School of Law







At 10:50 PM 11/13/2001 -0500, you wrote:
>The text of President Bush's order regarding military trials for terrorists
>is available at
>http://www.abcnews.go.com/sections/us/DailyNews/bush_terror_order011113.html
>
>Any reactions?
>
>Ed Hartnett
>Seton Hall
>