Rehnquist did not address the Justice Department's current use of Supreme Court precedent to hold "enemy combatants" without trial. Nor did he indicate whether the Supreme Court's aging case law on military tribunals would survive a modern-day challenge.
"I will offer only a historical perspective -- what the Supreme Court has said in the past about the use of these tribunals," Rehnquist told his audience in prepared remarks.
The chief justice also made no mention of President Bush's executive order last November authorizing the Defense Department to set up military commissions to try "international terrorists" who are not U.S. citizens. The order followed the devastating terrorist attacks on Sept. 11.
Such a military commission would operate under much less stringent rules than a civilian court, with lesser proof needed for a guilty verdict. Commission trials, if they indeed come, might not even be held in public.
But one of the cases the chief justice reviewed for the annual D.C. Circuit Judicial Conference was 1942's ex parte Quirin. Deputy Attorney General Larry Thompson cited Quirin earlier this week as justification for keeping Jose Padilla indefinitely in Defense Department custody.
Padilla, who calls himself Abdullah al Muhajir, was arrested May 8 at Chicago's O'Hare Airport. The government accused him of plotting with senior al Qaida members to explode a radioactive "dirty bomb" in an American city, though officials said the plot never got much beyond the discussion stage.
Padilla has not been charged, but is being held in the Navy's Consolidated Brig in Charleston, S.C., as an enemy combatant.
Besides Quirin, Rehnquist spoke Friday about the Civil War-era ex parte Milligan and World War II's Duncan vs. Kahanamoku.
In the summer of 1862, President Abraham Lincoln and Secretary of War Edwin Stanton issued executive proclamations suspending the writ of habeas corpus -- under which the federal courts conduct constitutional review of someone's incarceration -- "and authorizing not only temporary detention, but also trials of those held before military commissions instead of the civil courts," Rehnquist said.
Two years later, Union officials in Indiana "got wind of a suspected conspiracy on the part of Southern sympathizers to raid a government arsenal at Rock Island, Ill., to free Confederate prisoners in a camp near Chicago and to assassinate Governor Morton of Indiana," Rehnquist said. The plans were thwarted when a cache of arms and other incriminating evidence was found in the Indianapolis home of the state commander of the "Sons of Liberty."
Stanton ordered the conspirators tried before a military commission of senior Army officers, not a civil court. The defendants were found guilty and the commission sentenced all but three of them to hang.
But by that time, Rehnquist said, Lincoln had won a sweeping re-election, Atlanta had fallen to Union troops and Sherman was on his march to the sea. Public sentiment began to favor leniency.
Lincoln hinted that he would commute the conspirators' sentences, but was assassinated before he could do so. President Andrew Johnson ordered the sentences to be carried out.
Lawyers for the conspirators then went to federal court and asked for a writ of habeas corpus -- literally "you should have the body" -- and the case went to the Supreme Court as ex parte Milligan.
Rehnquist is known for his public disgust at lawyers who appear before the Supreme Court unprepared. Friday, he told the D.C. Circuit that the Milligan case was badly argued by Attorney General James Speed -- "his principal qualification for the job seems to have been that he was the brother of a close friend of Lincoln's from Kentucky."
Speed actually argued that the Constitution applied only in peacetime, which didn't sit well with the justices.
However, a decision wasn't handed down until December 1866, nearly a year after the war ended. A majority of the Supreme Court ruled that civilians could not be tried by military commissions outside the theater of war, when there were perfectly good civil courts open for business.
However, Milligan was not to survive intact.
Sixty years ago, six months after the Japanese attack on Pearl Harbor, Richard Quirin and seven other members of the German armed forces were secretly put ashore in the United States -- four on Long Island, and four in Florida.
The Germans immediately changed clothes, burying their uniforms.
One of the would-be saboteurs turned himself in to the FBI, and the other seven were arrested in New York or Chicago.
When they questioned the saboteurs, the FBI agents believed the men would be tried in civil courts. But government lawyers ultimately realized that the men might face a maximum sentence of only two years in prison, Rehnquist said.
The government was also wary of a public trial that would expose the ease with which the men entered the United States, and expose the true story of how they were captured. Publicly, the arrests were an FBI triumph, not the case of one man contacting the FBI and, after much convincing, being allowed to turn himself in.
President Franklin Roosevelt appointed a military commission to try Quirin and the others for offenses against the laws of war and the Articles of War enacted by Congress. Roosevelt's executive order also directed that the men have no access to the civil courts, Rehnquist said.
Instead, the men were assigned military lawyers, albeit high-profile ones: Col. Kenneth Royall, who would later serve as the last secretary of war and the first Army secretary, and Maj. Lauson Stone, son of Chief Justice Harlan Stone.
While they were being tried by the military commission, seven of the eight men asked "the Supreme Court of the United States for review of the procedures under which they were being tried," Rehnquist said.
The Supreme Court came back from its summer recess for a special term on July 29, 1942, to hear argument.
Lawyers for the seven men argued that since civil courts were in operation and there was no invasion of the country, under the Civil War Milligan precedent the men could not be tried by military commission.
One of the seven, Herbert Haupt, had been born in the United States, though he went to Germany with his parents when he was five.
On July 31, 1942, the Supreme Court announced it was upholding the government's position, but did not hand down a full opinion until that October.
Meanwhile, on Aug. 3, the military commission sentenced all eight men to death by electrocution. On Aug. 8, Roosevelt commuted the sentences for two of the saboteurs to prison terms. The other six men were executed that day.
Chief Justice Harlan Stone wrote the opinion justifying the military commission -- no recusal because his son was a defense attorney before that same commission! Justices nowadays recuse themselves, withdraw from considering a case, even if there is the slightest connection with one of the sides in a dispute.
In its opinion, the Supreme Court "sharply cut back on the dicta (non-binding details) in the Milligan case," Rehnquist said in his prepared remarks, "saying that even though the civil courts were open, and even though it was assumed that one of the German soldiers was a United States citizen, these defendants could nonetheless properly be tried and sentenced to death by a military commission."
The third case reviewed by Rehnquist dealt with Hawaii, which was placed under martial law within days of the attack on Pearl Harbor, and remained under martial law until 1944, when it was lifted by presidential proclamation.
A few hours after the attack, Hawaiian territorial Gov. Joseph Poindexter issued a proclamation placing the territory under martial law and suspending habeas corpus.
He then asked the commander of the Military Department of Hawaii to exercise all powers usually held by the governor and by territorial judges. Poindexter also sent a message to the chief justice of the territorial supreme court saying "all courts of the territory of Hawaii will be closed until further notice."
"And so they were," Rehnquist said.
Poindexter and his allies had closely studied Milligan. If the civil courts were in operation, the military commissions could not operate. So, close down the civil courts.
Two defendants, one convicted of assault and the other of embezzling, challenged their status and filed for writs of habeas corpus in the federal courts, despite Poindexter's purported suspension of that writ.
Eventually, a majority of the Supreme Court ruled in Duncan vs. Kahanamoku that the extension of martial law so long after the threat of invasion was over was illegal.
"Chief Justice Stone commented in a concurring opinion that if the bars and restaurants could be reopened two months after Pearl Harbor," Rehnquist said, "it was hard to see why the courts should not have been able to reopen a full year later."
So Hawaiian civil libertarians enjoyed a victory. The bad news was that the Supreme Court decision did not come until February 1946, half a year after the war ended and nearly two years after martial law had been lifted by presidential proclamation.
"Looking at these three examples of the Supreme Court's treatment of military tribunals," Rehnquist said, "one is reminded of the Latin maxim 'inter arma silent leges' -- in time of war the laws are silent."
Milligan was decided a year and a half after the end of the Civil War. Quirin was decided "in the dark days of the summer of 1942." Duncan was decided long after it ceased to make a difference.
"These cases suggest that while the laws are surely not silent in time of war," Rehnquist said, "courts may interpret them differently then than in time of peace."
The chief justice did not say whether he considered the United States to be at war now -- which would seem to be essential to the use of military commissions or the indefinite incarceration of "enemy combatants."
But the Justice Department has indicated informally it will argue in court that a state of war exists, and that a Joint Congressional Resolution authorizing President Bush to use military force against al Qaida and the former Taliban regime of Afghanistan is the legal equivalent of a congressional declaration of war.
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