Constitutional Law Class Notes 2/25/04


Ex parte Quirin


Why doesn’t this case control in Padilla?  Is this case distinguishable?  Padilla isn’t a member of al Qaeda.  But Haupt, the American citizen in Quirin, was a uniformed, paid solider of the German army.  That’s a factual distinction between Padilla and Haupt.  Also, there is a question of whether or not there is congressional authorization for the detention of Padilla.  The Court in Quirin says that there definitely is congressional authorization for subjecting Haupt to the military tribunal.


If there is congressional authorization, what does that mean for Justice Jackson’s Youngstown Sheet analysis?  That means they’ll go into the “Yes!”/“Category 1” box.  Jackson hadn’t invented the three part analysis at the time this case was decided, but if we extrapolate backward to Quirin, the court says that Congress, through its Acts including promulgating the articles of war for the U.S. military, has authorized detentions and trials in these circumstances.  But does the Constitution as a whole bar Congress and the president from trying an American citizen by a military entity as opposed to being tried by a civilian court?

What is the essence of the reasoning in Quirin?  Why does the Court allow an American citizen to be subject to military jurisdiction when the citizen is captured in Chicago wearing civilian clothes?  In some sense, the citizen is connected to the German army, but when captured in Chicago by the FBI, he’s not wearing a German uniform.  He’s just roaming the streets of Chicago acting like a regular U.S. citizen.  What’s the Court’s rationale for allowing him to be subjected to military jurisdiction?


Haupt was found to be an unlawful combatant under the Geneva Convention or Hague Convention.  What if Haupt had been a lawful combatant of the German army?  Would he be entitled to a criminal trial in a U.S. District Court?  No, he would have prisoner of war status and would be subject to military jurisdiction, but of a different type than the jurisdiction he was submitted to in this case.  POWs were simply treated differently.  The procedures for POWs would be more in the nature of courts-martial.  You get more rules of evidence and better access to counsel, among other things, in a court martial.


If Haupt had not been a soldier or had any other status in the German army, but had instead been a native-born American Nazi sympathizer without orders from the German government, and he had decided to blow up buildings in the United States, then under the reasoning of Quirin, could he have been subjected to the same military tribunal that he was in the present case?  Does Quirin establish the authority of Congress and the president to subject American Nazis to military tribunals as opposed to civil prosecution for treason?  How could we determine whether Haupt was an unlawful combatant?


The Court says that even if you’re an American citizen, you may be an enemy belligerent if you associate yourself with the military arm of an enemy government and use its aid to enter the country to try to commit hostile acts.  For example, Haupt used a German submarine to enter the country on the sly.


Quirin holds that Congress and the president can do this under these sorts of facts.  You can point to those facts as limiting facts, but they don’t really tell us how to decide the next case.  The facts only tell us how to resolve that particular set of facts.


Quirin purports not to disturb the holding of Milligan.  Milligan stands for a situation where Congress and the president are not allowed to subject citizens to military tribunals.  Padilla falls between the cracks between Quirin and Milligan.  Into which category should it go?


Did Haupt renounce his U.S. citizenship?  The Court declines to decide this.  They find that it doesn’t matter whether or not Haupt is a U.S. citizen; instead, they believe that it only matters that he entered the country under cover of night in a German uniform to try to blow stuff up in the U.S.


Part of what’s being litigated in Hamdi and Padilla is that the government claims that it doesn’t matter whether the individuals are U.S. citizens or not.  In Hamdi, they argue that Hamdi did renounce his U.S. citizenship when he took up arms with the Taliban against the U.S.  But Padilla’s connection to al Qaeda seems more tenuous than the connection between Hamdi and the Taliban on the one hand, and Haupt and the German army on the other hand.


The other important point is the fact that al Qaeda is not a nation.  When you take up the uniform of a foreign nation at war with the U.S., that could be a renunciation of citizenship.  But what about taking up arms with a non-state terrorist organization?


The United States government wants to win this case on presidential authority whether or not Padilla is a U.S. citizen: they don’t want their power to detain to turn on U.S. citizenship.  If it does, they will try to argue that Padilla is not a citizen.


But why doesn’t Quirin provide the president with all the authority he needs to detain Padilla?  The defense wants to argue that Quirin is distinguishable, as noted above.


Does it make a difference that Padilla was caught at the airport instead of at home?  Milligan was captured at home, while Haupt was captured on the streets of Chicago.  What if you were caught at your place of employment?


Quirin tells us that the president can choose military tribunals over criminal proceedings.  When an American citizen is acting in conjunction with a foreign military entity under certain circumstances, this option is available.  But the precedent is unclear.


The problem of Padilla seems to be the fact that we’re not dealing with cooperation with the military of another country.


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