As defense council for Richard Quirin and seven other prisoners, Col. Kenneth C. Royall and Col. Cassius M. Dowell decided that to obey one order of their commander-in-Chief they had to defy another. Their clients, all German-born, had lived in America but returned before Pearl Harbor to study sabotage techniques at a school near Berlin.See also the case: Ex parte Quirin, 317 U.S. 1 (1942)In dense midnight fog on June 12, 1942, a German submarine edged toward Amagansett Beach, Long Island, to land Quirin and three comrades, in German uniform, in a rubber boat. On the beach they met an unarmed Coast Guardsman who pretended to believe their story about fishing, then went off to get help. Armed, his patrol hurried back--to hear U-boat diesels offshore, to dig up cases of TNT and bombs disguised as pen-and-pencil sets, to notify the police and the Federal Bureau of Investigation.
Five nights later, Herbert Haupt, Werner Thiel, Edward Kerling, and Hermann Neubauer landed safely at Ponte Vedra Beach, Florida, from another U-boat. None of the saboteurs was successful. On June 27, the FBI announced the arrest of all eight.
President Roosevelt appointed a military commission to try them as spies under the Articles of War; and Colonels Royall and Dowell to defend them. He issued a proclamation closing all civilian courts to such enemies, but the defense decided, in duty to their clients, to disobey this. Challenging the commission's legal authority, they sought writs of habeas corpus from the Court.
After two days of hearing and questioning lawyers for both sides, the Court said that Congress, in the Articles of War, had provided for commissions to try such cases; that the President had lawfully appointed one; that the writs would not issue.
But in finding for the President, the Supreme Court set another precedent--a proclamation from the White House could not close the doors of the Court. An executive order would not annul its power to review government actions under law.
The President announced on August 8 that all the saboteurs had been convicted, six executed. Two who had cooperated with the FBI went to prison at hard labor.
http://www.supremecourthistory.org/02_history/subs_history/02_c12.html
These were German citizens, but the Supreme Court noted ...
Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, [317 U.S. 1, 38] guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war. Cf. Gates v. Goodloe, 101 U.S. 612, 615 , 617 S., 618. It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused.
Sec. 2. Definition and Policy.More summary background (some highly opinionated) at: ...(a) The term "individual subject to this order" shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:
(1) there is reason to believe that such individual, at the relevant times,
(i) is or was a member of the organization known as al Qaida;
(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or
(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and(2) it is in the interest of the United States that such individual be subject to this order. ...
http://www.willamette.edu/~blong/LegalEssaysII/GuantanamoII.html
http://www.cato.org/dailys/07-01-02.html
http://www.cato.org/dailys/08-21-03.html
http://pacer.ca4.uscourts.gov/opinion.pdf/056396.P.pdf <- Luttig opinion that Padilla is PROPERLY held in military detention. THis is the case that the administration wants to avoid being taken up by SCOTUS.
ping to #151
Thanks, Cboldt. Excellent info.