Martin v. Mott (1827)
Pres. Madison calls up militia during War
of 1812, relying on powers delegated by
Enforcement Act of 1795
Mott refuses to serve, uses state courts to
quash court martial’s fine
Sup Ct upholds President’s sole authority
to decide what constituted a proper
emergency under Congress’s authority
Military Law Cases during WWII
Hirabayashi v. U.S. (1943)
Curfew and reporting to assembly centers
Ex parte Endo (1944)
The U.S. cannot detain a citizen that the
government itself concedes is loyal
Korematsu v. U.S. (1944)
Internment camps and exclusion
Duncan v. Kahanamoku (1946) (no ethnic issue)
Suspension of Hawaiian territorial law, use of
military tribunals – overturned by Ct (in 46)
Hirabayashi v. U.S. (1943)
Hirabayashi was convicted of violating a
curfew and relocation order
Hirabayashi argued that a March, 1942 Act
of Congress delegated excessive power to
the President & military commanders
Sup Ct found delegation proper and avoids
questions of racial bias entirely
In 1986-7, Hirabayashi's convictions were
vacated by federal district court.
Hirabayashi v. U.S. (1943)
“The war power of the national
government is 'the power to wage
war successfully‘…It extends to
every matter and activity so related
to war as substantially to affect its
conduct and progress.”
Chief Justice Stone
Ex parte Endo (1944)
Mitsuye Endo relocated from Sacramento home
to Tule Lake camp, then Topaz, UT
There was no evidence of disloyalty by Endo, the
Govt conceded such and claimed no need to
detain her except as an “essential step” in the
larger internment process
Court orders her release as individuals should not
be detained for administrative convenience
Decided same day as Korematsu, unanimous, and
avoided specific issues in Korematsu
Youngstown Sheet & Tube v. Sawyer (1952)
Steelworkers union threatens strike
Truman see strike as threatening Korean
War
Truman directs Commerce Sec. Sawyer to
seize and operate mills to avoid strike
Congress considered, and rejected,
provision for such in 1947 (Taft-Hartley)
New York Times v. US (1971)
Pentagon Papers were a 47 volume official
documentary history of Vietnam
involvement
Leaked to NY Times, and vetted by Times
over 6 month period
Showed multiple acts of official dishonesty,
undermined stated purposes of the war
Habeas corpus
Art I, Sec 9:
The privilege of the Writ of Habeas
Corpus shall not be suspended,
unless when in Cases of Rebellion or
Invasion the public Safety may
require it.
Located with congressional powers
Habeas corpus
“You [shall] have the body“
First recorded usage in 1305
Habeas Corpus Act 1679 (England)
established that the command of
the King or the Privy Council was no
answer to a petition of habeas
corpus.
Habeas corpus
Constitution restricts Congress’ power
to restrict writ, but does not define
right to the writ
Generally interpreted according to
common law
Boumediene v. Bush refers to "the
writ as it existed in 1789”
Ex parte Merryman (1861)
April 19, 1861, Marylanders attack a
Mass. regiment passing through
Baltimore, 2 days later Lincoln suspends
habeas corpus through executive order
to Army command
Merryman, a Lt. in Maryland militia, was
arrested May 25, suspected of
possessing arms and Confederate
sympathies; charged with treason.
Ex parte Merryman (1861)
Merryman, a Lt. in Maryland militia,
was arrested May 25, suspected of
possessing arms and Confederate
sympathies; charged with treason.
immediately files petition for
habeas corpus with Circuit Court for
the District of Maryland. C.J. Taney
hears case as circuit judge.
Ex parte Merryman (1861)
Taney’s initial ruling:
1. That the president [...] cannot suspend the
privilege of the writ of habeas corpus, nor
authorize a military officer to do so.
1. That a military officer has no right to
arrest and detain a person not subject to
the rules and articles of war [...] except in
aid of the judicial authority, and subject
to its control.
Ex parte Merryman (1861)
The Army refused to accept Taney’s writ.
Lincoln ignored Taney’s order and
continued suspension of habeas corpus
for two additional years until Congress
passed the Habeas Corpus Act of 1863.
Merryman remained under arrest for
treason, without trial, until 1867, when
the charges were dropped.
Ex Parte Milligan (1866)
J. Davis concludes (for Court) that
neither President nor Congress can
authorize tribunals while courts open
CJ Chase (w/ 3 others) finds that
Congress did not authorize such
tribunals, but that Congress could
have
Ex parte Quirin (1942)
8 German spies landed on Long Island
from a U-Boat and were promptly
captured and tried by a military tribunal
Question was whether prisoners had right
to habeas corpus review by civilian
courts before execution for violating law
of war.
Ex parte Quirin (1942)
Court found that there was a proper
right to habeas review
Court also found military tribunal
proper even though civilian courts
functioning b/c prisoners were
enemy soldiers operating outside
proper law of war by failing to wear
their uniforms
Johnson v. Eisentrager (1950)
Eisentrager et al were German military
personnel captured in China by the U S
Army and tried and convicted in China by
an American military commission for
violations of the laws of war committed in
China prior to their capture.
They were transported to the US-occupied
part of Germany and imprisoned by the US
Army. At no time were they within the
territorial jurisdiction of any US civil court.
Johnson v. Eisentrager (1950)
Eisentrager et al argued that they should be
provided with all constitutional safeguards
used in US courts
Sup Ct: “We are cited to no instance where a
court, in this or any other country where
the writ is known, has issued it on behalf of
an alien enemy who, at no relevant time
and in no stage of his captivity, has been
within its territorial jurisdiction.”
Johnson v. Eisentrager (1950)
“the privilege of litigation has been extended to
aliens, whether friendly or enemy, only
because permitting their presence in the
country implied protection … these prisoners
at no relevant time were within any territory
over which the United States is sovereign, and
the scenes of their offense, their capture,
their trial and their punishment were all
beyond the territorial jurisdiction of any court
of the United States”
Hamdi v. Rumsfeld (2004)
Hamdi was U.S. citizen by birth,
grew up in Saudi Arabia (also
citizen), captured by Northern
Alliance.
US claimed Hamdi was fighting w/
Taliban, Hamdi claimed he was a
noncombatant relief worker
Hamdi v. Rumsfeld (2004)
Hamdi first sent to Guantanamo,
then sent to naval brig in VA
after discovery of US citizenship.
Held without access to an
attorney or the court system
Father hires attorney and acts as
“next friend”
Hamdi v. Rumsfeld (2004)
The Court recognized the power of
the government to detain
unlawful combatants, but ruled
that detainees who are U.S.
citizens must have access to
attorney and the ability to
challenge their detention before
an impartial judge.