Understanding Terrorism Cases
Landmark Cases
The following are landmark cases in which the courts have had to weigh the competing interests of individual liberty with public safety during times of national emergency. A list of discussion starters is provided after the cases. Participants are encouraged to discuss their opinions concerning the court decisions in these cases and their rationale. Cases involving the writ of habeas corpus are so marked.
Ex Parte Merryman, Circuit Court, D. Maryland, April Term 1861.
Habeas corpus
Shortly after the Civil War began, riots broke out in Maryland as individuals protested the Union's transportation of troops through the state. In response, President Lincoln suspended the writ of habeas corpus and ordered the arrest of those interfering with the troop movements. After his arrest, John Merryman challenged the constitutionality of the President's actions. Chief Justice Robert B. Taney, riding circuit, heard the case and agreed with Merryman. Taney stated that, although the Constitution permits the writ of habeas corpus to be suspended under certain circumstances, due to the "suspension clause" in Article I, Sec. 9 (the provision of the Constitution permitting the writ to be suspended), only Congress, and not the President, may do so. The U.S. Supreme Court has never addressed this issue.
The Prize Cases, 67 U.S. 635 (1862)
On April 12, 1861, Confederate forces fired on Fort Sumter. In response to this action, President Lincoln ordered the blockade of Southern ports and the seizure of several ships in Southern harbors. The owners of some of the ships argued that this action was illegal since the United States had not officially declared war on South Carolina or any other Southern state. The Supreme Court ruled that the firing on Fort Sumter constituted an act of war and that the President did not have to wait until Congress officially declared war to take appropriate defensive measures, such as seizing the ships. Since the federal government viewed the Civil War as a rebellion, Congress never officially declared war on the South.
Ex Parte Milligan, 71 U.S. 2 (1866)
Habeas corpus
Lamdin Milligan, a civilian and Southern sympathizer, lived in the border state of Indiana. During the Civil War, he was accused of conspiring to free Confederate prisoners from a nearby military jail. After a trial by a military tribunal, he was sentenced to death. He filed for a writ of habeas corpus, arguing that, as a civilian, he should have been tried before a civilian court, not a military court. The Supreme Court agreed and stated that, even in wartime, as long as the civilian courts are still functioning, civilians must not be tried before military tribunals.
Schenck v. United States, 249 U.S. 47 (1919)
Charles Schenck printed pamphlets during World War I that urged young Americans to evade the draft. He was prosecuted under the Espionage Act but argued that his actions were protected by the "Free Speech" clause of the First Amendment. The Supreme Court disagreed, saying that, although his actions may be permissible during peacetime, during wartime, they constitute a "clear and present danger" to the United States and, as such, could be restricted.
Ex Parte Quirin, 317 U.S. 1 (1942)
Habeas corpus
During World War II, eight Nazi saboteurs in civilian clothing landed via submarine on the Eastern Shore of Maryland and were apprehended by military forces shortly thereafter. The saboteurs were accused of being spies and were tried before a military tribunal. All eight were convicted and six were sentenced to death. The saboteurs filed for a writ of habeas corpus arguing that, as civilians, they were entitled to a trial before a civilian court, and not a military court. The Supreme Court rejected their arguments, stating that the crime of spying was governed by the rules and customs of war, and thus, the procedures established by the military tribunal afforded them adequate due process.
Hirabayashi v. United States, 320 U.S. 81 (1943)
During World War II, President Roosevelt signed a presidential order that, among other things, established a curfew for persons of Japanese ancestry living near military zones on the West Coast. This action was undertaken because the government was afraid that Japanese-Americans might engage in espionage or sabotage. Gordon Hirabayashi, a person of Japanese ancestry, violated this curfew, which he argued was unconstitutionally discriminatory. The U.S. Supreme Court disagreed and said that the President's actions were justified by the necessities of war.
Korematsu v. United States, 323 U.S. 214 (1944)
During World War II, President Roosevelt signed Presidential Order 9066, which authorized the removal of persons of Japanese ancestry from military zones on the West Coast. This action was undertaken because the government was afraid that Japanese-Americans might engage in espionage or sabotage. Korematsu was tried for violating this order when he refused to relocate. He defended his action by arguing that the order was unconstitutionally discriminatory. The U.S. Supreme Court disagreed and said that the President's actions were justified by the necessities of war.
Ex Parte Endo, 323 U.S. 283 (1944)
Habeas corpus
During World War II, President Roosevelt signed a presidential order removing all persons of Japanese ancestry from military zones on the West Coast. This order was later ratified by an Act of Congress. Mitsuye Endo (a U.S. citizen), like many persons of Japanese ancestry, was not only removed from the West Coast but also relocated to an internment camp. At the camp, she sued for a writ of habeas corpus, arguing that her detainment was illegal since the presidential order and Act of Congress authorizing the removal of persons of Japanese ancestry from the West Coast said nothing about subsequently interning them. The Supreme Court agreed and ordered Endo released.
In Re Yamashita, 327 U.S. 1 (1946)
Habeas corpus
During World War II, General Yamashita was a commander of Japanese forces. After the war, Yamashita was tried for war crimes by a U.S. Military Commission established by General Douglas MacArthur. During the trial, Yamashita unsuccessfully argued that he never ordered his troops to commit these atrocities and should not be held responsible for their unofficial actions. The Commission found Yamashita guilty and sentenced him to death, holding that he was responsible for controlling the actions of his troops. Yamashita asked the U.S. Supreme Court for a writ of habeas corpus, stating that the U.S. Military Commission did not follow the procedural protections of the U.S. Constitution. In a 7-2 decision, the Court denied his petition, holding that an enemy from another country who is accused of war crimes is not entitled to the procedural protections of the Constitution.
Johnson v. Eisentrager, 339 U.S. 763 (1950)
Habeas corpus
Twenty-one German nationals living in China at the end of World War II were tried and convicted of war crimes by a U.S. military tribunal and sent to Germany to serve their sentences. In prison, Eisentrager (no first name given), one of the nationals, and others filed for a writ of habeas corpus, arguing that their procedural due process rights as guaranteed by the U.S. Constitution were violated by the U.S. military tribunal. The Supreme Court disagreed and stated that (1) foreign nationals (2) who never lived in the United States, (3) who are captured and (4) tried for war crimes (5) that were committed abroad, and (6) who are serving their sentences abroad were not entitled to habeas relief in U.S. courts.
Reid v. Covert, 354 U.S. 1 (1957)
Habeas corpus
A federal statute stated that dependents of military personnel overseas accused of capital offenses would be tried before a military court. Clarice Covert was accused of killing her husband, an Air Force sergeant, at a military base in England. She was tried and convicted of murder in a military court and received a life sentence. She filed for a writ of habeas corpus, arguing that, as a civilian, she could not be tried in a military court. The Supreme Court agreed and ruled that dependents of military personnel accused of capital offenses must be tried in civilian courts, not military courts.
General Discussion Starters
1. In Ex Parte Merryman, the Court ruled that Congress and not the President has the authority to suspend the writ of habeas corpus. The Court based its reasoning on the fact that the suspension clause is located in Article I-the article that deals with Congress. President Lincoln argued to the contrary, saying that the Constitution is silent as to who can suspend the Great Writ. With whom do you agree, the Court or Lincoln? Is the location of the suspension clause important? Why or why not?
2. In the Prize Cases, the Supreme Court held that President Lincoln was authorized to take defensive measures to protect the United States after the attacks on Fort Sumter. How might the Prize Cases be applied today?
3. Ex Parte Milligan was decided a year after the Civil War ended. Do you think that the decision would have been different if the war were still continuing when the Court heard the case? Do you think that courts should take into account the U.S. situation in a war when they make decisions that could affect national security? Why or why not?
4. One legal maxim states inter arma salient leges (Latin: In times of war, the laws are silent). Do you think that this statement is true? Should it be? Can you think of cases that might be an example of this maxim?
5. In Reid v. Covert, the Supreme Court held that civilian dependents of military personnel cannot be tried for capital offenses in military courts. Are there any times where it may be appropriate to try civilians in military courts? If so, provide some examples. |
