Judicial Review for Enemy Fighters? Andrew Kent on the Quirin Case

Benjamin Wittes
Friday, January 4, 2013, 11:00 AM
Andrew Kent writes in with the following guest post on his fascinating new article on Ex Parte Quirin. I asked Andrew to write up this piece, after reading an earlier draft of the underlying paper for a workshop last summer that Matt and Trevor organized at Columbia Law School. I found both the history Andrew had dug up to be completely eye-opening, and the analysis to be challenging and important.

Published by The Lawfare Institute
in Cooperation With

Andrew Kent writes in with the following guest post on his fascinating new article on Ex Parte Quirin. I asked Andrew to write up this piece, after reading an earlier draft of the underlying paper for a workshop last summer that Matt and Trevor organized at Columbia Law School. I found both the history Andrew had dug up to be completely eye-opening, and the analysis to be challenging and important. I recommend the underlying article---to which Ken has already linked---both to fans and foes of judicialization of wartime detention:
So much has been written in the last decade about Ex parte Quirin, the 1942 Supreme Court habeas case about the military commission trial of Nazi saboteurs, that I can forgive readers for assuming there is nothing more to say. I’ve nevertheless tried to take a fresh look at an under-appreciated aspect of the case in a forthcoming article in the Vanderbilt Law Review, entitled Judicial Review for Enemy Fighters: The Court’s Fateful Turn in Ex parte Quirin, the Nazi Saboteur Case. Ken already linked to this article in a Readings post earlier today. Criticism of Quirin by lawyers, legal academics, historians and even Supreme Court justices has been scathing. Leading academics call Quirin a “troubling,” “shameful” and “embarrassing” precedent and an “institutional defeat” for the Court. The conventional account is that a Court beholden to President Roosevelt—he had appointed or elevated eight of the nine justices and had close relationships with several—deferred too much to the executive because of wartime pressure and dislike for the enemy saboteurs, and with undue haste blessed an illegal military commission process that executed six men after a quick and perfunctory trial, with a Court opinion that was filled with dubious or even disingenuous legal reasoning. Much of this criticism focuses on procedure (the military commission’s and the Supreme Court’s) and the Court’s resolution of substantive merits of the constitutional and statutory issues raised by the habeas petitions. My article focuses on something else entirely---an important threshold issue that has escaped sustained attention to date: whether the Nazi saboteurs had any right to access U.S. civilian courts via habeas corpus in the first place.
The fact that the Supreme Court held that the saboteurs had the right to seek habeas corpus relief in Article III courts—over a presidential proclamation denying access and legal arguments advanced by the Attorney General— has been viewed by most critics of the decision as the only redeeming feature of an otherwise exceptionally regrettable episode in the annals of Supreme Court decisionmaking. However, under well-established law, the saboteurs, having admitted that they were enemy fighters and, with one exception, nonresident enemy aliens, had no right to be in court at all. A substantial part of my article (Parts III-V) is devoted to showing that undisputed enemy fighters like the saboteurs had never before been understood to have a right to access civilian courts to claim protection against the U.S. government from the Constitution and other municipal (domestic) laws. And, similarly, that enemy aliens resident outside the United States, even if they were civilians rather than combatants, had under prior law no right to access the nation’s courts during wartime. Their legal disabilities arose from rules of the common law and law of nations which dated back centuries but were still upheld in commentary, political branch practice and judicial opinions well into the twentieth century, including in two other Supreme Court decisions from 1942. The key was the allegiance-protection framework, under which persons were within the protection of domestic laws and the courts only if they owed permanent or temporary allegiance to the government. This aspect of my paper builds on several prior articles of mine, as well as an important article by Professor Philip Hamburger. I discuss competing accounts of habeas history and access to courts offered by Lawfare regular Steve Vladeck, historian Paul Halliday and others, but conclude that the Court erred and disregarded substantial bodies of precedent and practice by allowing the Nazi saboteurs to access the civilian courts via habeas corpus. This Article’s account of Quirin cuts strongly against the grain of modern scholarship about the case. Once the importance of the court access issue is highlighted, Quirin is seen to be a significant defeat for the government at the hands of a Court that disregarded a large body of contrary case law and other legal precedents and insinuated itself into a matter about which courts have traditionally abstained from judgment. Rather than being cowed by a popular President during wartime and failing to protect individual rights—as standard accounts of judicial behavior during wartime would predict— I argue that the Court wanted to and did demonstrate its independence by rejecting the President’s contention that the detained individuals’ habeas claims could not be heard. Understanding the Court’s reversal on the issue of court access also helps save the Court from some of the criticism of its decision. Many critics have found troubling the Court’s merits holding that individual constitutional rights provisions were inapplicable, while others have criticized the Court’s written opinion for failing to cite much precedent and therefore seeming unsupported or unpersuasive. But prior to Quirin, no admitted enemy fighters had ever before had access to U.S. courts, and so no precedent was put on record about how to handle their claims once in court. And under prior law, undisputed enemy fighters were outside protection of the laws, meaning that they lacked court access and lacked judicially enforceable domestic-law rights. So their substantive legal claims were meritless for the same reason that the petitioners should have been denied court access. The Court’s failure to apply established law on court access in Quirin was, in some respects, inexplicable—all the more so because the Court itself did not deign to give any reasons or cite any authorities. Part VI of my article uses the tools of lawyers, legal historians, and political scientists—including both internal (legal and institutional) and external (biographical, political, and ideological) perspectives—to try to account for why the Court’s surprising actions. The late 1930s and early 1940s were a time of great change on the Supreme Court, in its membership, its views about the President’s relation to the judiciary, its constitutional doctrines relating to individual rights, and its understanding of the reach of habeas corpus. I examine these developments as well as the larger ideological and political contexts and the disputes among justices about the legal issues presented in Quirin. (Some aspects this story have been previously discussed in articles by Jack Goldsmith.) There are two final parts of the article. First, in Part VII.A, I discuss the doctrinal consequences of Quirin’s holding on court access. The Court and commentators have come to understand Quirin to stand for the proposition that literally any person held in executive custody within the United States has a right to habeas corpus review. Somewhat counter-intuitively, I argue that this holding has helped extend constitutional rights and judicial review to noncitizens abroad, in cases like Boumediene. Finally, in Part VII.B, I discuss policy. While persons who deny the U.S. government’s allegations that they are enemy fighters might be thought to be entitled to judicial review to resolve that jurisdictional dispute, I argue that undisputed enemy fighters, like the saboteurs in Quirin, do not need and probably should not have access to U.S. courts during wartime, especially in traditional nation-to-nation warfare. Undisputed enemy fighters detained by the United States in such a conflict would be protected by a comprehensive regime of international law, as well as by diplomacy, NGO oversight, and norms of reciprocity. Adding judicial review with habeas corpus would entail significant costs, relatively few incremental benefits, and would have little chance of being reciprocated by enemy nations in future conflicts. I close by noting that, for a variety of reasons, the policy cash-out of my argument is less certain in untraditional conflicts like the present war on terror.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

Subscribe to Lawfare