The Influence of Ex Parte Quirin and Courts-Martial on Military Commissions

By Morris D. Davis[*]

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Professor Greg McNeal was an academic consultant to the prosecution during my tenure as the Chief Prosecutor for the military commissions at Guantánamo Bay, Cuba.  We had similar perspectives on many issues, and we still confer on detainee matters.  I concur with the views expressed in his essay.[1]  I write to address two issues Professor McNeal identified and comment on how they affect the military commissions.  First, I examine the case of the Nazi saboteurs—captured, tried, and executed in the span of seven weeks in 1942—and its influence on the decision in 2001 to resurrect military commissions.  Second, I assess the conflicting statutory provisions in the Military Commissions Act and the impact on full, fair, and open trials.

I.  Attempting to Repeat History

Professor McNeal argues that the administration chose military commissions to protect information collected for intelligence (intel) purposes from disclosure.  Safeguarding intel, particularly the sources and methods used to acquire information, was a key factor, but I believe the decision had a broader basis heavily influenced by a precedent-setting trial in 1942 that became the template for the President’s Military Order of November 13, 2001.[2]

Shortly after midnight the morning of June 13, 1942, four men left a German submarine and came ashore at Amagansett Beach, New York.[3]  They wore military uniforms in hopes that if captured during the landing they would receive prisoner of war treatment.  Four days later, at Ponte Vedra Beach near Jacksonville, Florida, another group of four men did the same.  The eight men infiltrated the United States to execute a plan developed by the German High Command at the insistence of Adolph Hitler to attack factories, bridges, rail yards, and utilities to disrupt wartime production, intimidate the American public, and weaken the will to fight.  The men were selected because they had lived in the United States before and were unlikely to attract attention as they moved about the country committing sabotage.