U.S. Supreme Court

Ex Parte Quirin,317 U.S. 1(1942)Ex Parte Quirin{|317 U.S.1fn1|1}

Nos. ___, Original

MOTIONS FOR LEAVE TO FILE PETITIONSFOR

WRITS OF HABEASCORPUS

and

United States ex rel. Quirin v.Cox{|317 U.S.1fn2|2}

Nos. 1-7

CERTIORARI TO THE UNITED STATESCOURT OF APPEALS

FOR THE DISTRICT OFCOLUMBIA

Argued July 29-30,1942

Decided July 31, 1942

Per Curiam decision filed, July 31,1942{|317 U.S.1fn3|3}

Full Opinion filed, October 29,1942{|317 U.S.1fn4|4}

317 U.S.1

Syllabus

1. A federal court may refuse to issue a writ of habeas corpuswhere the facts alleged in the petition, if proved, would notwarrant discharge of the prisoner. P.317 U. S. 24.

Page 317 U. S. 2

2. Presentation to the District Court of the United States forthe District of Columbia of a petition for habeas corpus was theinstitution of a suit, and denial by that court of leave to filethe petition was a judicial determination of a case or controversyreviewable by appeal to the U.S. Court of Appeals for the Districtof Columbia and in this Court by certiorari. P.317 U. S. 24.

3. The President's Proclamation of July 2, 1942, declaring thatall persons who are citizens or subjects of, or who act under thedirection of, any nation at war with the United States, and whoduring time of war enter the United States through coastal orboundary defenses, and are charged with committing or attempting tocommit sabotage, espionage, hostile acts, or violations of the lawof war, "shall be subject to the law of war and to the jurisdictionof military tribunals," does not bar accused persons from access tothe civil courts for the purpose of determining the applicabilityof the Proclamation to the particular case; nor does theProclamation, which in terms denied to such persons access to thecourts, nor the enemy alienage of the accused, forecloseconsideration by the civil courts of the contention that theConstitution and laws of the United States forbid their trial bymilitary commission. P.317 U. S. 24.

4. In time of war between the United States and Germany,petitioners, wearing German military uniforms and carryingexplosives, fuses, and incendiary and time devices, were landedfrom German submarines in the hours of darkness, at places on theEastern seaboard of the United States. Thereupon they buried theuniforms and supplies, and proceeded, in civilian dress, to variousplaces in the United States. All had received instructions inGermany from an officer of the German High Command to destroy warindustries and war facilities in the United States, for which theyor their relatives in Germany were to receive salary payments fromthe German Government. They also had been paid by the GermanGovernment during their course of training at a sabotage school,and had with them, when arrested, substantial amounts of UnitedStates currency, which had been handed to them by an officer of theGerman High Command, who had instructed them to wear their Germanuniforms while landing in the United States. Specification 1 of thecharges on which they were placed on trial before a militarycommission charged that they,

"being enemies of the United States and acting for . . . theGerman Reich, a belligerent enemy nation, secretly and covertlypassed, in civilian dress, contrary to the law of war, through themilitary and naval lines and defenses of the United

Page 317 U. S. 3

States . . . and went behind such lines, contrary to the law ofwar, in civilian dress . . . for the purpose of committing . . .hostile acts, and, in particular, to destroy certain warindustries, war utilities and war materials within the UnitedStates."

Held:

(1) That the specification sufficiently charged an offenseagainst the law of war which the President was authorized to ordertried by a military commission; notwithstanding the fact that, eversince their arrest, the courts in the jurisdictions where theyentered the country and where they were arrested and held for trialwere open and functioning normally.Ex parteMilligan, 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 laysdown the procedure to be followed on the trial before theCommission and on the review of its findings and sentence, and theprocedure in fact followed by the Commission, were not in conflictwith 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 amilitary commission, and, upon petitions for writs of habeascorpus, did not show cause for their discharge. P.317 U. S. 47.

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

6. Congress, in addition to making rules for the government ofour Armed Forces, by the Articles of War has exercised itsauthority under Art. I, § 8, cl. 10 of the Constitution to defineand punish offenses against the law of nations, of which the law ofwar is a part, by sanctioning, within constitutional limitations,the jurisdiction of military commissions to try persons foroffenses which, according to the rules and precepts of the law ofnations, and more particularly the law of war, are cognizable bysuch tribunals. And by Article of War 15, Congress has incorporatedby reference, as within the jurisdiction of military commissions,all offenses which are defined as such by the law of war and whichmay 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 waras including that part of the law of nations which prescribes, forthe

Page 317 U. S. 4

conduct of war, the status, rights and duties of enemy nationsas well as of enemy individuals. P.317 U. S. 27.

8. The offense charged in this case was an offense against thelaw of war, the trial of which by military commission had beenauthorized by Congress, and which the Constitution does not requireto be tried by jury.Ex parteMilligan, 4 Wall. 2, distinguished. P.317 U. S. 45.

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

10. It has long been accepted practice by our militaryauthorities to treat those who, during time of war, passsurreptitiously from enemy territory into our own, discarding theiruniforms upon entry, for the commission of hostile acts involvingdestruction of life or property, as unlawful combatants punishableas such by military commission. This practice, accepted andfollowed by other governments, must be regarded as a rule orprinciple of the law of war recognized by this Government by itsenactment of the Fifteenth Article of War. P.317 U. S. 35.

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

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

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

14. Section 2 of the Act of Congress of April 10, 1806, derivedfrom the Resolution of the Continental Congress of August 21, 1776,and which imposed the death penalty on alien spies "according tothe law and usage of nations, by sentence of a general courtmartial," was a contemporary construction of Article III, § 2 ofthe Constitution and of the Fifth and Sixth Amendments, as notforeclosing trial by military tribunals, without a jury, foroffenses 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 ofour 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 inthis case, the Court finds no occasion to consider the validity ofother specifications based on the 81st and 82nd Article of War, orto construe those articles or decide upon their constitutionality aso 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 allthe Associate Justices.

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

In response to an inquiry by the Chief Justice, the AttorneyGeneral stated that the Chief Justice's son, Major Lauson H. Stone,U.S.A. had, under orders, assisted defense counsel before theMilitary Commission, in the case relative to which the Special Termof the Court was called; but that Major Stone had had no connectionwith this proceeding before this Court. Therefore, said theAttorney General, counsel for all the respective parties in thisproceeding joined in urging the Chief Justice to participate in theconsideration and decision of the matters to be presented. ColonelKenneth C. Royall, of counselor the petitioners, concurred in thestatement and request of the Attorney General.

The applications, seven in number (ante, p. 1,n 1), first took the form of petitionsto this Court for leave to file petitions for writs of habeascorpus to secure the release of the petitioners from the custody ofBrigadier General

Page 317 U. S. 6

Albert L. Cox, U.S.A. Provost Marshal of the Military Districtof Washington, who, pursuant to orders, was holding them in thatDistrict for and during a trial before a Military Commissionconstituted by an Order of the President of the United States.During the course of the argument, the petitioners were permittedto file petitions for writs of certiorari, directed to the UnitedStates Court of Appeals for the District of Columbia, to review,before judgment by that Court, orders then before it by appeal bywhich the District Court for the District of Columbia had deniedapplications for leave to file petitions for writs of habeascorpus.

After the argument, this Court delivered a Per Curiam Opinion,disposing of the cases (footnote, p.317 U. S. 18). Afull opinion, which is the basis of this Report, was filed with theClerk 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,Exparte Ernest Peter Burger; No. ___, Original,Ex parteHeinrich Harm Heinck; No. ___, Original,Ex parte WernerThiel; and No. ___, Original,Ex parte Hermann OttoNeubauer.

[Footnote 2]

No. 1,United States ex rel. Quirin v. Cox, ProvostMarshal; No. 2,United States ex rel. Haupt v. Cox, ProvostMarshal; 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. Heinckv. Cox, Provost Marshal; No. 6,United States ex rel.Thiel v. Cox, Provost Marshal, and No. 7,United States exrel. 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 habeascorpus were presented to the United States District Court for theDistrict of Columbia, which entered orders denying the motions.Motions for leave to file petitions for habeas corpus were thenpresented to this Court, and the merits of the applications werefully argued at the Special Term of Court convened on July 29,1942. Counsel for petitioners subsequently filed a notice of appealfrom the order of the District Court to the United States Court ofAppeals for the District of Columbia, and they have perfected theirappeals to that court. They have presented to this Court petitionsfor writs of certiorari before judgment of the United States Courtof Appeals for the District of Columbia, pursuant to 28 U.S.C. §347(a). The petitions are granted. In accordance with thestipulation between counsel for petitioners and for the respondent,the papers filed and argument had in connection with theapplications for leave to file petitions for habeas corpus are madeapplicable to the certiorari proceedings."

"The Court has fully considered the questions raised in thesecases and thoroughly argued at the bar, and has reached itsconclusion upon them. It now announces its decision and enters itsjudgment in each case, in advance of the preparation of a fullopinion, which necessarily will require a considerable period oftime for its preparation and which, when prepared, will be filedwith the Clerk."

"The Court holds:"

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

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

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

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

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

"MR. JUSTICE MURPHY took no part in the consideration ordecision 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 applicationfor leave to file petitions for habeas corpus in this Court, and bytheir petitions for certiorari to review orders of the DistrictCourt for the District of Columbia, which denied their applicationsfor leave to file petitions for habeas corpus in that court.

The question for decision is whether the detention ofpetitioners 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 theirviolations of the law of war and of the Articles of War, is inconformity 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 habeascorpus in this Court. In view of the public importance of thequestions raised by their petitions and of the duty which rests onthe courts, in time of war as well as in time of peace, to preserveunimpaired the constitutional safeguards of civil liberty, andbecause, in our opinion, the public interest required that weconsider and decide those questions without any avoidable delay, wedirected that petitioners' applications be set down for full oralargument at a special term of this Court, convened on July 29,1942. The applications for leave to file the petitions werepresented in open court on that day, and were heard on thepetitions, the answers to them of respondent, a stipulation offacts by counsel, and the record of the testimony given before theCommission.

While the argument was proceeding before us, petitionersperfected their appeals from the orders of the District Court tothe 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 beforejudgment, pursuant to § 240(a) of the Judicial Code, 28 U.S.C. §347(a). We granted certiorari before judgment for the reasons whichmoved us to convene the special term of Court. In accordance withthe stipulation of counsel, we treat the record, briefs andarguments in the habeas corpus proceedings in this Court as therecord, briefs and arguments upon the writs of certiorari.

On July 31, 1942, after hearing argument of counsel and afterfull consideration of all questions raised, this Court affirmed theorders of the District Court and denied petitioners' applicationsfor leave to file petitions for habeas corpus. By per curiamopinion, we announced the decision of the Court, and that the fullopinion in the causes would be prepared and filed with theClerk.

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 theUnited States. All returned to Germany between 1933 and 1941. Allexcept petitioner Haupt are admittedly citizens of the GermanReich, with which the United States is at war. Haupt came to thiscountry with his parents when he was five years old; it iscontended that he became a citizen of the United States by virtueof the naturalization of his parents during his minority, and thathe has not since lost his citizenship. The Government, however,takes the position that, on attaining his majority he elected tomaintain German allegiance and citizenship, or in any case that hehas, by his conduct, renounced or abandoned his United Statescitizenship.See Perkins v. Elg,307 U.S. 325,307 U. S. 334;United States ex rel. Rojak v. Marshall, 34 F.2d219;United States ex rel. Scimeca v. Husband, 6 F.2d957, 958; 8 U.S.C. § 801,and compare 8 U.S.C. § 808. Forreasons presently to be stated we do not find it necessary toresolve these contentions.

Page 317 U. S. 21

After the declaration of war between the United States and theGerman Reich, petitioners received training at a sabotage schoolnear Berlin, Germany, where they were instructed in the use ofexplosives and in methods of secret writing. Thereafterpetitioners, with a German citizen, Dasch, proceeded from Germanyto a seaport in Occupied France, where petitioners Burger, Heinckand Quirin, together with Dasch, boarded a German submarine whichproceeded across the Atlantic to Amagansett Beach on Long Island,New York. The four were there landed from the submarine in thehours of darkness, on or about June 13, 1942, carrying with them asupply of explosives, fuses, and incendiary and timing devices.While landing, they wore German Marine Infantry uniforms or partsof uniforms. Immediately after landing, they buried their uniformsand the other articles mentioned and proceeded in civilian dress toNew York City.

The remaining four petitioners at the same French port boardedanother German submarine, which carried them across the Atlantic toPonte Vedra Beach, Florida. On or about June 17, 1942, they cameashore during the hours of darkness, wearing caps of the GermanMarine Infantry and carrying with them a supply of explosives,fuses, and incendiary and timing devices. They immediately buriedtheir caps and the other articles mentioned, and proceeded incivilian dress to Jacksonville, Florida, and thence to variouspoints in the United States. All were taken into custody in NewYork or Chicago by agents of the Federal Bureau of Investigation.All had received instructions in Germany from an officer of theGerman High Command to destroy war industries and war facilities inthe United States, for which they or their relatives in Germanywere to receive salary payments from the German Government. Theyalso had been paid by the German Government during their course oftraining at the sabotage school, and had received substantial sumsin

Page 317 U. S. 22

United States currency, which were in their possession whenarrested. The currency had been handed to them by an officer of theGerman High Command, who had instructed them to wear their Germanuniforms while landing in the United States. [Footnote 2/1]

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

"all persons who are subjects, citizens or residents of anynation at war with the United States or who give obedience to oract under the direction of any such nation,

Page 317 U. S. 23

and who during time of war enter or attempt to enter the UnitedStates . . . through coastal or boundary defenses, and are chargedwith committing or attempting or preparing to commit sabotage,espionage, hostile or warlike acts, or violations of the law ofwar, shall be subject to the law of war and to the jurisdiction ofmilitary tribunals."

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

Pursuant to direction of the Attorney General, the FederalBureau of Investigation surrendered custody of petitioners torespondent, Provost Marshal of the Military District of Washington,who was directed by the Secretary of War to receive and keep themin custody, and who thereafter held petitioners for trial beforethe Commission.

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

1. Violation of the law of war.

2. Violation of Article 81 of the Articles of War, defining theoffense of relieving or attempting to relieve, or correspondingwith 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 and3.

The Commission met on July 8, 1942, and proceeded with thetrial, which continued in progress while the causes were pending inthis Court. On July 27th, before petitioners' applications to theDistrict Court, all the evidence for the prosecution and thedefense had been taken by the Commission and the case had beenclosed except for arguments of counsel. It is conceded that, eversince 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 ordetained, have been open and functioning normally.

While it is the usual procedure on an application for a writ ofhabeas corpus in the federal courts for the court to issue the writand on the return to hear and dispose of the case, it may withoutissuing the writ consider and determine whether the facts allegedby the petition, if proved, would warrant discharge of theprisoner.Walker v. Johnston,312 U.S. 275,312 U. S. 284.Presentation of the petition for judicial action is the institutionof a suit. Hence, denial by the district court of leave to file thepetitions in these causes was the judicial determination of a caseor controversy, reviewable on appeal to the Court of Appeals andreviewable here by certiorari.SeeEx parteMilligan, 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 withoutany statutory or constitutional authority to order the petitionersto be tried by military tribunal for offenses with which they arecharged; that, in consequence, they are entitled to be tried in thecivil courts with the safeguards, including trial by jury, whichthe Fifth and Sixth Amendments guarantee to all persons charged insuch courts with criminal offenses. In any case, it is urged thatthe President's Order, in prescribing the procedure of theCommission and the method for review of its findings and sentence,and the proceedings of the Commission under the Order, conflictwith Articles of War adopted by Congress -- particularly Articles38, 43, 46, 50 1/2 and 70 -- and are illegal and void.

The Government challenges each of these propositions. Butregardless of their merits, it also insists that petitioners mustbe denied access to the courts, both because they are enemy aliensor have entered our territory as enemy belligerents, and becausethe President's Proclamation undertakes in terms to deny suchaccess to the class of

Page 317 U. S. 25

persons defined by the Proclamation, which aptly describes thecharacter and conduct of petitioners. It is urged that, if they areenemy aliens or if the Proclamation has force, no court may affordthe petitioners a hearing. But there is certainly nothing in theProclamation to preclude access to the courts for determining itsapplicability to the particular case. And neither the Proclamationnor the fact that they are enemy aliens forecloses consideration bythe courts of petitioners' contentions that the Constitution andlaws of the United States constitutionally enacted forbid theirtrial by military commission. As announced in our per curiamopinion, we have resolved those questions by our conclusion thatthe Commission has jurisdiction to try the charge preferred againstpetitioners. There is therefore no occasion to decide contentionsof the parties unrelated to this issue. We pass at once to theconsideration of the basis of the Commission's authority.

We are not here concerned with any question of the guilt orinnocence of petitioners. [Footnote2/4] Constitutional safeguards for the protection of all whoare charged with offenses are not to be disregarded in order toinflict merited punishment on some who are guilty.Ex parteMilligan, 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 thePresident in the declared exercise of his powers as Commander inChief of the Army in time of war and of grave public danger -- arenot to be set aside by the courts without the clear conviction thatthey are in conflict with the Constitution or laws of Congressconstitutionally enacted.

Congress and the President, like the courts, possess no powernot derived from the Constitution. But one of

Page 317 U. S. 26

the objects of the Constitution, as declared by its preamble, isto "provide for the common defence." As a means to that end, theConstitution gives to Congress the power to "provide for the commonDefence," Art. I, § 8, cl. 1; "To raise and support Armies," "Toprovide and maintain a Navy," Art. I, § 8, cl. 12, 13, and "To makeRules for the Government and Regulation of the land and navalForces," Art. I, § 8, cl. 14. Congress is given authority "Todeclare War, grant Letters of Marque and Reprisal, and make Rulesconcerning Captures on Land and Water," Art. I, § 8, cl. 11, and"To define and punish Piracies and Felonies committed on the highSeas, 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 forcarrying into Execution the foregoing Powers, and all other Powersvested 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 thatthe Laws be faithfully executed." Art. II, § 3. It makes him theCommander in Chief of the Army and Navy, Art. II, § 2, cl. 1, andempowers him to appoint and commission officers of the UnitedStates. Art. II, § 3, cl. 1.

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

By the Articles of War, 10 U.S.C. §§ 1471-1593, Congress hasprovided rules for the government of the Army. It has provided forthe trial and punishment, by courts

Page 317 U. S. 27

martial, of violations of the Articles by members of the armedforces and by specified classes of persons associated or servingwith the Army. Arts. 1, 2. But the Articles also recognize the"military commission" appointed by military command as anappropriate tribunal for the trial and punishment of offensesagainst the law of war not ordinarily tried by court martial.See Arts. 12, 15. Articles 38 and 46 authorize thePresident, with certain limitations, to prescribe the procedure formilitary commissions. Articles 81 and 82 authorize trial, either bycourt martial or military commission, of those charged withrelieving, harboring or corresponding with the enemy and thosecharged with spying. And Article 15 declares that

"the provisions of these articles conferring jurisdiction uponcourts martial shall not be construed as depriving militarycommissions . . . or other military tribunals of concurrentjurisdiction in respect of offenders or offenses that, by statuteor 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 lawthe personnel of our own military establishment. But this, asArticle 12 provides, does not exclude from that class "any otherperson who by the law of war is subject to trial by militarytribunals" and who, under Article 12, may be tried by court martialor under Article 15 by military commission.

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

From the very beginning of its history, this Court hasrecognized and applied the law of war as including that part of thelaw of nations which prescribes, for the conduct

Page 317 U. S. 28

of war, the status, rights and duties of enemy nations, as wellas of enemy individuals. [Footnote2/5] By the Articles of War, and especially Article 15,Congress has explicitly provided, so far as it may constitutionallydo so, that military tribunals shall have jurisdiction to tryoffenders or offenses against the law of war in appropriate cases.Congress, in addition to making rules for the government of ourArmed Forces, has thus exercised its authority to define and punishoffenses against the law of nations by sanctioning, withinconstitutional limitations, the jurisdiction of militarycommissions to try persons for offenses which, according to therules and precepts of the law of nations, and more particularly thelaw of war, are cognizable by such tribunals. And the President, asCommander in Chief, by his Proclamation in time of war, has invokedthat law. By his Order creating the present Commission, he hasundertaken to exercise the authority conferred upon him byCongress, and also such authority as the Constitution itself givesthe Commander in Chief, to direct the performance of thosefunctions which may constitutionally be performed by the militaryarm of the nation in time of war.

An important incident to the conduct of war is the adoption ofmeasures by the military command not only to repel and defeat theenemy, but to seize and subject to disciplinary measures thoseenemies who, in their attempt to thwart or impede our militaryeffort, have violated the law

Page 317 U. S. 29

of war. It is unnecessary for present purposes to determine towhat extent the President as Commander in Chief has constitutionalpower to create military commissions without the support ofCongressional legislation. For here, Congress has authorized trialof offenses against the law of war before such commissions. We areconcerned only with the question whether it is within theconstitutional power of the National Government to placepetitioners upon trial before a military commission for theoffenses with which they are charged. We must therefore firstinquire whether any of the acts charged is an offense against thelaw of war cognizable before a military tribunal, and, if so,whether the Constitution prohibits the trial. We may assume thatthere are acts regarded in other countries, or by some writers oninternational law, as offenses against the law of war which wouldnot be triable by military tribunal here, either because they arenot recognized by our courts as violations of the law of war orbecause they are of that class of offenses constitutionally triableonly by a jury. It was upon such grounds that the Court denied theright to proceed by military tribunal inEx parte Milligan,supra. But, as we shall show, these petitioners were chargedwith an offense against the law of war which the Constitution doesnot require to be tried by jury.

It is no objection that Congress, in providing for the trial ofsuch offenses, has not itself undertaken to codify that branch ofinternational law or to mark its precise boundaries, or toenumerate or define by statute all the acts which that lawcondemns. An Act of Congress punishing "the crime of piracy, asdefined by the law of nations" is an appropriate exercise of itsconstitutional authority, Art. I, § 8, cl. 10, "to define andpunish" the offense, since it has adopted by reference thesufficiently precise definition of international law.United States v.Smith, 5 Wheat. 153;SeeThe MariannaFlora, 11 Wheat. 1,24 U. S.40-41;

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United States v. Brig MalekAdhel, 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 thereference in the 15th Article of War to "offenders or offenses that. . . by the law of war may be triable by such militarycommissions," Congress has incorporated by reference, as within thejurisdiction of military commissions, all offenses which aredefined as such by the law of war (compare61 U.S. Hoover, 20 How. 65,61 U. S. 82), andwhich may constitutionally be included within that jurisdiction.Congress had the choice of crystallizing in permanent form and inminute detail every offense against the law of war, or of adoptingthe system of common law applied by military tribunals so far as itshould be recognized and deemed applicable by the courts. It chosethe latter course.

By universal agreement and practice, the law of war draws adistinction between the armed forces and the peaceful populationsof belligerent nations, [Footnote2/7] and also between

Page 317 U. S. 31

those who are lawful and unlawful combatants.Lawful combatantsare subject to capture and detention as prisoners of war byopposing military forces. Unlawful combatants are likewise subjectto capture and detention, but, in addition, they are subject totrial and punishment by military tribunals for acts which rendertheir belligerency unlawful. [Footnote2/8] The spy who secretly and without uniform passes themilitary lines of a belligerent in time of war, seeking to gathermilitary information and communicate it to the enemy, or an enemycombatant who without uniform comes secretly through the lines forthe purpose of waging war by destruction of life or property, arefamiliar examples of belligerents who are generally deemed not tobe entitled to the status of prisoners of war, but to be offendersagainst the law of war subject to trial and punishment by militarytribunals.See Winthrop, Military Law,2d ed., pp. 11997,1219-21; Instructions for the Government of Armies of the UnitedStates 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 theadoption of the Constitution, [Footnote2/9] 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 thecountry, or in the uniform of the army hostile to their own,employed in obtaining information, if found within or lurking aboutthe lines of the captor, are treated as spies, and sufferdeath."

And Paragraph

Page 317 U. S. 33

84, that

"Armed prowlers, by whatever names they may be called, orpersons of the enemy's territory, who steal within the lines of thehostile army for the purpose of robbing, killing, or of destroyingbridges, roads, or canals, or of robbing or destroying the mail, orof cutting the telegraph wires, are not entitled to the privilegesof the prisoner of war. [Footnote2/11]"

These and related provisions have

Page 317 U. S. 34

been continued in substance by the Rules of Land Warfarepromulgated by the War Department for the guidance of theArmy.Rules of 1914, Par. 369-77; Rules of 1940, Par. 345-57.Paragraph 357 of the 1940 Rules provides that "All war crimes aresubject to the death penalty, although a lesser penalty may beimposed." Paragraph 8 (1940) divides the enemy population into"armed forces" and "peaceful population," and Paragraph 9 names asdistinguishing 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 commithostilities" without having the means of identification prescribedfor belligerents are punishable as "war criminals." Paragraph 351provides that "men and bodies of men, who, without being lawfulbelligerents" "nevertheless commit hostile acts of any kind" arenot entitled to the privileges of prisoners of war if captured, andmay be tried by military commission and punished by death or lesserpunishment. And paragraph 352 provides that

"armed prowlers . . . or persons of the enemy territory whosteal within the lines of the hostile army for the purpose ofrobbing, killing, or of destroying bridges, roads, or canals, ofrobbing 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 ofthe applicable principles of the common law of war, and not anexclusive enumeration of the punishable acts recognized as such bythat law. The definition of lawful belligerents by Paragraph 9 isthat adopted by Article 1, Annex to Hague Convention No. IV ofOctober 18, 1907, to which the United States was a signatory andwhich was ratified by the Senate in 1909. 36 Stat. 2295. Thepreamble 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, incases not included in the Regulations adopted by them, theinhabitants and the belligerents remain under the protection andthe rule of the principles of the law of nations, as they resultfrom the usages established among civilized peoples, from the lawsof humanity, and the dictates of the public conscience."

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

By a long course of practical administrative construction by itsmilitary authorities, our Government has likewise recognized thatthose who, during time of war, pass surreptitiously from enemyterritory into our own, discarding their uniforms upon entry, forthe commission of hostile acts involving destruction of life orproperty, have the status of unlawful combatants punishable as suchby military commission. This precept of the law of war has been sorecognized in practice both here and abroad, and has so generallybeen accepted as valid by authorities on international law[Footnote 2/12] that we think itmust be regarded as

Page 317 U. S. 36

a rule or principle of the law of war recognized by thisGovernment by its enactment of the Fifteenth Article of War.

Specification 1 of the first charge is sufficient to charge allthe petitioners with the offense of unlawful belligerency, trial ofwhich is within the jurisdiction of the Commission, and theadmitted facts affirmatively show that the charge is not merelycolorable or without foundation.

Specification 1 states that petitioners,

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

This specification so plainly alleges violation of the law ofwar 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 actingunder the direction of the armed forces of the enemy, for thepurpose of destroying property used or useful in prosecuting thewar, is a hostile and warlike act. It subjects those whoparticipate in it without uniform to the punishment prescribed bythe law of war for unlawful belligerents. It is withoutsignificance that petitioners were not alleged to have borneconventional weapons or that their proposed hostile acts did notnecessarily contemplate collision with the Armed Forces of theUnited States. Paragraphs 351 and 352 of the Rules of Land Warfare,already referred to, plainly contemplate that the hostile acts andpurposes for which unlawful belligerents may be punished are notlimited to assaults on the Armed Forces of the United States.Modern warfare is directed at the destruction of enemy war suppliesand the implements of their production and transportation, quite asmuch as at the armed forces. Every consideration which makes theunlawful belligerent punishable is equally applicable whether hisobjective is the one or the other. The law of war cannot rightlytreat those agents of enemy armies who enter our territory, armedwith explosives intended for the destruction of war industries andsupplies, as any the less belligerent enemies than are agentssimilarly entering for the purpose of destroying fortified placesor our Armed Forces. By passing our boundaries for such purposeswithout uniform or other emblem signifying their belligerentstatus, or by discarding that means of identification after entry,such enemies become unlawful belligerents subject to trial andpunishment.

Citizenship in the United States of an enemy belligerent doesnot relieve him from the consequences of a belligerency which isunlawful because in violation of the law of war. Citizens whoassociate 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 Conventionand 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 petitionerHaupt is charged with entering the United States, and unlawfulbelligerency is the gravamen of the offense of which he isaccused.

Nor are petitioners any the less belligerents if, as they argue,they have not actually committed or attempted to commit any act ofdepredation or entered the theatre or zone of active militaryoperations. The argument leaves out of account the nature of theoffense which the Government charges and which the Act of Congress,by incorporating the law of war, punishes. It is that eachpetitioner, in circumstances which gave him the status of an enemybelligerent, passed our military and naval lines and defenses orwent behind those lines, in civilian dress and with hostilepurpose. The offense was complete when, with that purpose, theyentered -- or, having so entered, they remained upon -- ourterritory in time of war without uniform or other appropriate meansof identification. For that reason, even when committed by acitizen, the offense is distinct from the crime of treason definedin Article III, § 3 of the Constitution, since the absence ofuniform essential to one is irrelevant to the other.Cf. Moranv. 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 whichthey are charged are offenses against the law of war, their trialis subject to the requirement of the Fifth Amendment that no personshall be held to answer for a capital or otherwise infamous crimeunless on a presentment or indictment of a grand jury, and thatsuch trials by Article III, § 2, and the Sixth Amendment must be byjury in a civil court. Before the Amendments, § 2 of ArticleIII,

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 directedthat "such Trial shall be held in the State where the said Crimesshall have been committed."

Presentment by a grand jury and trial by a jury of the vicinagewhere the crime was committed were, at the time of the adoption ofthe Constitution, familiar parts of the machinery for criminaltrials in the civil courts. But they were procedures unknown tomilitary tribunals, which are not courts in the sense of theJudiciary Article,Ex parteVallandigham, 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, areusually called upon to function under conditions precluding resortto such procedures. As this Court has often recognized, it was notthe purpose or effect of § 2 of Article III, read in the light ofthe common law, to enlarge the then existing right to a jury trial.The object was to preserve unimpaired trial by jury in all thosecases in which it had been recognized by the common law and in allcases 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 guarantythose cases in which it was then well understood that a jury trialcould not be demanded as of right.

The Fifth and Sixth Amendments, while guaranteeing thecontinuance of certain incidents of trial by jury which ArticleIII, § 2 had left unmentioned, did not enlarge the right to jurytrial 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 betried without a jury in the federal courts, notwithstanding ArticleIII, § 2, and the Fifth and Sixth Amendments.Schick v. UnitedStates,195 U. S. 65;District ofColumbia

Page 317 U. S. 40

v. Clawans,300 U. S. 617.Trial by jury of criminal contempts may constitutionally bedispensed with in the federal courts in those cases in which theycould be tried without a jury at common law.Ex parteTerry,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;SeeUnited States v. Hudson andGoodwin, 7 Cranch 32,11U. S. 34. Similarly, an action for debt to enforce apenalty inflicted by Congress is not subject to the constitutionalrestrictions upon criminal prosecutions.United States v.Zucker,161 U. S. 475;United States v. Regan,232 U. S. 37, andcases cited.

All these are instances of offenses committed against the UnitedStates, for which a penalty is imposed, but they are not deemed tobe within Article III, § 2, or the provisions of the Fifth andSixth 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 SixthAmendments cannot be taken to have extended the right to demand ajury to trials by military commission, or to have required thatoffenses against the law of war not triable by jury at common lawbe tried only in the civil courts.

The fact that "cases arising in the land or naval forces" areexcepted from the operation of the Amendments does not militateagainst this conclusion. Such cases are expressly excepted from theFifth Amendment, and are deemed excepted by implication from theSixth.Ex parte Milligan, supra,71 U. S. 123,71 U. S. 138-139.It is argued that the exception, which excludes from the Amendmentcases 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 notwithin the exception, the Amendment operates to

Page 317 U. S. 41

give to them the right to a jury trial. But we think thisargument misconceives both the scope of the Amendment and thepurpose of the exception.

We may assume, without deciding, that a trial prosecuted beforea military commission created by military authority is not one"arising in the land . . . forces," when the accused is not amember of or associated with those forces. But even so, theexception cannot be taken to affect those trials before militarycommissions which are neither within the exception nor within theprovisions of Article III, § 2, whose guaranty the Amendments didnot enlarge. No exception is necessary to exclude from theoperation of these provisions cases never deemed to be within theirterms. An express exception from Article III, § 2, and from theFifth and Sixth Amendments, of trials of petty offenses and ofcriminal contempts has not been found necessary in order topreserve the traditional practice of trying those offenses withouta jury. It is no more so in order to continue the practice oftrying, before military tribunals without a jury, offensescommitted 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 August21, 1776, [Footnote 2/13] imposedthe death penalty on alien spies "according to the law and usage ofnations, by sentence of a general court martial." This enactmentmust be regarded as a contemporary construction of both ArticleIII, § 2, and the Amendments as not foreclosing trial by militarytribunals, without a jury, of offenses against the law of warcommitted by enemies not in or associated with our Armed Forces. Itis a construction of the Constitution which has been followed sincethe founding of our Government, and is now continued in the 82ndArticle of War. Such a construction is entitled to

Page 317 U. S. 42

the greatest respect.Stuart v.Laird, 1 Cranch 299,5U. 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 thesubject that an alien spy, in time of war, could not be tried bymilitary tribunal without a jury. [Footnote 2/14]

Page 317 U. S. 43

The exception from the Amendments of "cases arising in the landor naval forces" was not aimed at trials by military tribunals,without a jury, of such offenses against the law of war. Itsobjective was quite different -- to authorize the trial by courtmartial of the members of our Armed Forces for all that class ofcrimes which, under the Fifth and Sixth Amendments, might otherwisehave been deemed triable in the civil courts. The cases mentionedin the exception are not restricted to those involving offensesagainst the law of war alone, but extend to trial of all offenses,including crimes which were of the class traditionally triable byjury 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 precludeall trials of offenses against the law of war by militarycommission without a jury when the offenders are aliens not membersof our Armed Forces, it is plain that they present no greaterobstacle to the trial in like manner of citizen enemies who haveviolated the law of war applicable to enemies. Under the originalstatute authorizing trial of alien spies by military tribunals, theoffenders were outside the constitutional guaranty of trial by jurynot because they were aliens, but only because they had violatedthe law of war by committing offenses constitutionally triable bymilitary tribunal.

We cannot say that Congress, in preparing the Fifth and SixthAmendments, intended to extend trial by jury to the cases of alienor citizen offenders against the law of war otherwise triable bymilitary commission, while withholding it from members of our ownarmed forces charged with infractions of the Articles of Warpunishable by death. It is equally inadmissible to construe theAmendments --

Page 317 U. S. 45

whose primary purpose was to continue unimpaired presentment bygrand jury and trial by petit jury in all those cases in which theyhad been customary -- as either abolishing all trials by militarytribunals, save those of the personnel of our own armed forces, or,what in effect comes to the same thing, as imposing on all suchtribunals the necessity of proceeding against unlawful enemybelligerents only on presentment and trial by jury. We concludethat the Fifth and Sixth Amendments did not restrict whateverauthority was conferred by the Constitution to try offenses againstthe law of war by military commission, and that petitioners,charged with such an offense not required to be tried by jury atcommon law, were lawfully placed on trial by the Commission withouta jury.

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

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

Elsewhere in its opinion, at pp.71 U. S. 118,71 U. S. 121-122and71 U. S. 131, theCourt was at pains to point out that Milligan, a citizen twentyyears resident in Indiana, who had never been a resident of any ofthe states in rebellion, was not an enemy belligerent eitherentitled to the status of a prisoner of war or subject to thepenalties imposed upon unlawful belligerents. We construe theCourt's statement as to the inapplicability of the law of war toMilligan's case as having particular reference to the facts beforeit. From them, the Court concluded that Milligan, not being a partof or associated with the armed forces of the enemy, was anonbelligerent, not subject to the law of war save as -- incircumstances 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 thepresent record. We have no occasion now to define

Page 317 U. S. 46

with meticulous care the ultimate boundaries of the jurisdictionof military tribunals to try persons according to the law of war.It is enough that petitioners here, upon the conceded facts, wereplainly within those boundaries, and were held in good faith fortrial by military commission, charged with being enemies who, withthe purpose of destroying war materials and utilities, entered, orafter entry remained in, our territory without uniform -- anoffense against the law of war. We hold only that those particularacts constitute an offense against the law of war which theConstitution authorizes to be tried by military commission.

Since the first specification of Charge I sets forth a violationof the law of war, we have no occasion to pass on the adequacy ofthe second specification of Charge I, or to construe the 81st and82nd Articles of War for the purpose of ascertaining whether thespecifications under Charges II and III allege violations of thoseArticles, 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 July2, 1942, so far as it lays down the procedure to be followed on thetrial before the Commission and on the review of its findings andsentence, and the procedure in fact followed by the Commission, arein conflict with Articles of War 38, 43, 46, 50 1/2 and 70.Petitioners argue that their trial by the Commission, for offensesagainst the law of war and the 81st and 82nd Articles of War, by aprocedure which Congress has prohibited would invalidate anyconviction which could be obtained against them, and renders theirdetention 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 allproceedings before the Commission, as well as any review of itsdecision, will preclude a later opportunity to test the lawfulnessof the detention.

Petitioners do not argue, and we do not consider, the questionwhether the President is compelled by the Articles of War to affordunlawful enemy belligerents a trial before subjecting them todisciplinary measures. Their contention is that, if Congress hasauthorized their trial by military commission upon the chargespreferred -- violations of the law of war and the 81st and 82ndArticles of War -- it has by the Articles of War prescribed theprocedure by which the trial is to be conducted, and that, sincethe President has ordered their trial for such offenses by militarycommission, they are entitled to claim the protection of theprocedure which Congress has commanded shall be controlling.

We need not inquire whether Congress may restrict the power ofthe Commander in Chief to deal with enemy belligerents. For theCourt is unanimous in its conclusion that the Articles in questioncould not at any stage of the proceedings afford any basis forissuing the writ. But a majority of the full Court are not agreedon the appropriate grounds for decision. Some members of the Courtare of opinion that Congress did not intend the Articles of War togovern a Presidential military commission convened for thedetermination of questions relating to admitted enemy invaders, andthat the context of the Articles makes clear that they should notbe construed to apply in that class of cases. Others are of theview that -- even though this trial is subject to whateverprovisions of the Articles of War Congress has in terms madeapplicable to "commissions" -- the particular Articles in question,rightly construed, do not foreclose the procedure prescribed by thePresident or that shown to have been employed

Page 317 U. S. 48

by the Commission, in a trial of offenses against the law of warand the 81st and 82nd Articles of War, by a military commissionappointed by the President.

Accordingly, we conclude that Charge I, on which petitionerswere detained for trial by the Military Commission, alleged anoffense which the President is authorized to order tried bymilitary commission; that his Order convening the Commission was alawful order, and that the Commission was lawfully constituted;that the petitioners were held in lawful custody, and did not showcause for their discharge. It follows that the orders of theDistrict Court should be affirmed, and that leave to file petitionsfor habeas corpus in this Court should be denied.

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

[Footnote 2/1]

From June 12 to June 18, 1942, Amagansett Beach, New York, andPonte Vedra Beach, Florida, were within the area designated as theEastern Defense Command of the United States Army, and subject tothe provisions of a proclamation dated May 16, 1942, issued byLieutenant General Hugh A. Drum, United States Army, CommandingGeneral, Eastern Defense Command (see 7 Federal Register3830). On the night of June 12-13, 1942, the waters aroundAmagansett Beach, Long Island, were within the area comprising theEastern Sea Frontier, pursuant to the orders issued by AdmiralErnest J. King, Commander in Chief of the United States Fleet andChief of Naval Operations. On the night of June 16-17, 1942, thewaters around Ponte Vedra Beach, Florida, were within the areacomprising the Gulf Sea Frontier, pursuant to similar orders.

On the night of June 12-13, 1942, members of the United StatesCoast Guard, unarmed, maintained a beach patrol along the beachessurrounding Amagansett, Long Island, under written ordersmentioning the purpose of detecting landings. On the night of June17-18, 1942, the United States Army maintained a patrol of thebeaches surrounding and including Ponte Vedra Beach, Florida, underwritten orders mentioning the purpose of detecting the landing ofenemy 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 theMilitary Commission was that petitioners had had no intention toobey the orders given them by the officer of the German HighCommand.

[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, 8Cranch 155,12 U. S.159-164;TheSt.Lawrence, 9 Cranch 120,13 U. S. 122;Thirty Hogsheads of Sugar v.Boyle, 9 Cranch 191,13 U. S.197-98;The Anne, 3Wheat. 435,16 U. S.447-48;United States v.Reading, 18 How. 1,59 U. S. 10;Prize Cases, 2Black 635,67 U. S.666-67,67 U. S. 687;The Venice, 2Wall. 258,69 U. S. 274;The WilliamBagaley, 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 federalcourts jurisdiction over suits brought by an alien for a tort "inviolation of the laws of nations"; 28 U.S.C. § 341, conferring uponthe Supreme Court such jurisdiction of suits against ambassadors asa court of law can have "consistently with the law of nations"; 28U.S.C. § 462, regulating the issuance of habeas corpus where theprisoner claims some right, privilege or exemption under the orderof a foreign state, "the validity and effect whereof depend uponthe law of nations"; 15 U.S.C. §§ 606(b) and 713(b), authorizingcertain loans to foreign governments, provided that "no such loansshall be made in violation of international law as interpreted bythe 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 whombelligerent 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 inLandkriege (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, DroitInternational (5th ed. tr. Lardy) §§ 531-32; 4 Calvo, Le DroitInternational 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 eDecreti del Regno d'Italia (1896) 3184; 7 Moore, Digest ofInternational 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 theBritish Army, was tried by a "Board of General Officers" appointedby General Washington, on a charge that he had come within thelines for an interview with General Benedict Arnold and had beencaptured while in disguise and traveling under an assumed name. TheBoard found that the facts charged were true, and that, whencaptured Major Andre had in his possession papers containingintelligence for the enemy, and reported their conclusion that

"Major Andre . . . ought to be considered as a Spy from theenemy, 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 aBoard 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 alarge number of instances for the trial of various offenses.See General Orders cited in 2 Winthrop, Military Law (2ded. 1896) p. 1298, note 1.

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

On May 22, 1865, T. E. Hogg and others were tried by a militarycommission, for "violations of the laws and usages of civilizedwar," the specifications charging that the accused "beingcommissioned, enrolled, enlisted or engaged" by the ConfederateGovernment, came on board a United States merchant steamer in theport of Panama "in the guise of peaceful passengers" with thepurpose of capturing the vessel and converting her into aConfederate cruiser. The Commission found the accused guilty andsentenced them to be hanged. The reviewing authority affirmed thejudgments, writing an extensive opinion on the question whetherviolations of the law of war were alleged, but modified thesentences to imprisonment for life and for various periods ofyears. Dept. of the Pacific, G.O. No. 52, June 27, 1865.

On January 17, 1865, John Y. Beall was tried by a militarycommission for "violation of the laws of war." The opinion by thereviewing authority reveals that Beall, holding a commission in theConfederate Navy, came on board a merchant vessel at a Canadianport in civilian dress and, with associates, took possession of thevessel in Lake Erie; that, also in disguise, he unsuccessfullyattempted to derail a train in New York State, and to obtainmilitary information. His conviction by the Commission was affirmedon the ground that he was both a spy and a "guerrilla," and he wassentenced to be hanged. Dept. of the East, G.O. No. 14, Feb. 14,1865.

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

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

Soldiers and officers "now or late of the Confederate Army" weretried and convicted by military commission for "being secretlywithin the lines of the United States forces," James Hamilton,Dept. of the Ohio, G.O. No. 153, Sept. 18, 1863; for "recruitingmen 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 andencampments of the armies of the United States," although not "as aspy," Augustus A. Williams, Middle Dept., G.O. No. 34, May 5, 1864.For other cases of violations of the law of war punished bymilitary 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 theterritory occupied by the enemy, to further, in any manner, theinterests of the enemy, if captured, is not entitled to theprivileges of the prisoner of war, and may be dealt with accordingto 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 enemylines by persons in civilian dress associated with or acting underthe direction of enemy armed forces, are "war crimes." The listincludes: "damage to railways, war material, telegraph, or othermeans of communication, in the interest of the enemy. . . ."Section 449 states that all "war crimes" are punishable bydeath.

Authorities on International Law have regarded as war criminalssuch 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, AirPower 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) carryingmessages secretly: Hall, International Law (8th ed.1924) § 188;Spaight, War Rights on Land 215; 3 Merignhac, Droit PublicInternational (1912) 296-97; Bluntschli, Droit InternationalCodifie (5th ed. tr. Lardy) § 639; 4 Calvo, Le Droit InternationalTheorique et Pratique (5th ed. 1896) § 2119; (c) any hostile act: 2Winthrop, Military Law and Precedents, (2nd ed. 1896) 1224.Cf. Lieber, Guerrilla Parties (1862), 2 MiscellaneousWritings (1881) 288.

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

[Footnote 2/13]

See Morgan, Court-Martial Jurisdiction overNon-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 spieswere tried and convicted by military tribunals: (1) Major JohnAndre, Sept. 29, 1780,see317 U.S.1fn2/9|>note 9supra. (2) Thomas Shanks wasconvicted by a "Board of General Officers" at Valley Forge on June3, 1778, for "being a Spy in the Service of the Enemy," andsentenced to be hanged. 12 Writings of Washington (BicentennialComm'n ed.) 14. (3) Matthias Colbhart was convicted of "holding aCorrespondence with the Enemy" and "living as a Spy among theContinental Troops" by a General Court Martial convened by order ofMajor General Putnam on Jan. 13, 1778; General Washington, theCommander in Chief, ordered the sentence of death to be executed,12Id. 449-50. (4) John Clawson, Ludwick Lasick, andWilliam Hutchinson were convicted of "lurking as spies in theVicinity of the Army of the United States" by a General CourtMartial held on June 18, 1780. The death sentence was confirmed bythe Commander in Chief. 19Id. 23. (5) David Farnsworthand John Blair were convicted of "being found about the Encampmentof the United States as Spies" by a Division General Court Martialheld on Oct. 8, 1778 by order of Major General Gates. The deathsentence was confirmed by the Commander in Chief. 13Id.139-40. (6) Joseph Bettys was convicted of being "a Spy for GeneralBurgoyne" by coming secretly within the American lines, by aGeneral Court Martial held on April 6, 1778 by order of MajorGeneral McDougall. The death sentence was confirmed by theCommander in Chief. 15Id. 364. (7) Stephen Smith wasconvicted of "being a Spy" by a General Court Martial held on Jan.6, 1778. The death sentence was confirmed by Major GeneralMcDougall.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 PointAccording to a General Order of Major General Arnold, Aug. 20-21,1780 (National Archives, War Dept., Revolutionary War Records, MSNo. 31521). (9) Jonathan Loveberry, a Loyalist soldier, wassentenced to be hanged as a spy. Proceedings of a General CourtMartial Convened at the Request of Major General Arnold at theTownship of Bedford, Aug. 30-31, 1780 (Id., MS No. 31523).He later escaped, 20 Writings of Washington 253n. (10) DanielTaylor, a lieutenant in the British Army, was convicted as a spy bya general court martial convened on Oct. 14, 1777, by order ofBrigadier General George Clinton, and was hanged. 2 Public Papersof George Clinton (1900) 443. (11) James Molesworth was convictedas a spy and sentenced to death by a general court martial held atPhiladelphia, March 29, 1777; Congress confirmed the order of MajorGeneral Gates for the execution of the sentence. 7 Journals of theContinental 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 theRevolution (1822) 369; of Lieutenant Palmer, 9 Writings ofWashington, 56n; of Daniel Strang, 6Id. 47n; of EdwardHicks, 14Id. 357; of John Mason and James Ogden, executedas spies near Trenton, N.J., on Jan. 10, 1781, mentioned in Hatch,Administration of the American Revolutionary Army (1904) 135 andVan Doren, Secret History of the American Revolution (1941)410.

During the War of 1812, William Baker was convicted as a spy andsentenced to be hanged, by a general court martial presided over byBrigadier General Thomas A. Smith at Plattsburg, N.Y., on March 25,1814. National Archives, War Dept., Judge Advocate General'sOffice, 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 wasconvicted as a spy, and sentenced to be hanged, by a general courtmartial held at Buffalo, N.Y., Aug. 5-8, 1812. He was orderedreleased by President Madison on the ground that he was an Americancitizen. 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 "allpersons," instead of only aliens. 12 Stat. 339, 340;seealso 12 Stat. 731, 737. For the legislative history,see Morgan, Court-Martial Jurisdiction over Non-MilitaryPersons under the Articles of War, 4 Minnesota L.Rev. 79, 109-11.During the Civil War, a number of Confederate officers andsoldiers, found within the Union lines in disguise, were tried andconvicted 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 casesof spies tried by military commission,see 2 Winthrop,Military Law and Precedents, 1193et seq.