FDR Got It Right...

...and so has Bush on the question of unlawful combatants in wartime

Herbie Haupt was the first of six Nazi agents to be electrocuted in the District of Columbia jail on Aug. 8, 1942. He was also an American citizen. Two months earlier, on June 17, Haupt had landed ashore with three compatriots at Ponte Vedra Beach, Florida. Their group, along with a second group of four Nazi spies that landed in eastern Long Island on June 13, came from Germany by submarine. They had instructions to destroy American factories, power plants, railroads and other military-industrial sites—an assignment known as Operation Pastorius.

Federal authorities quickly apprehended the eight saboteurs, all of whom were wearing civilian clothing at the time. On July 2, President Franklin D. Roosevelt established a military commission to try them. Six of the eight, including the 22-year-old Haupt, were executed; one was sentenced to life imprisonment; and one was sentenced to thirty years imprisonment.

In a unanimous 8-0 ruling, the Supreme Court upheld Roosevelt’s right to detain the eight men and try them by military commission in the landmark Ex parte Quirin case. The Court explicitly noted the difference between “lawful” and “unlawful” combatants: “Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.” The Nazi agents, in the Court’s view, were plainly “unlawful” combatants, as they came secretly “without uniform...for the purpose of waging war by destruction of life or property.”

The Court also took care to address the issue of Haupt’s American citizenship. “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...[and] enter this country bent on hostile acts are enemy belligerents” and subject to military jurisdiction.

The Quirin decision should be required reading for those who think the Bush administration has abandoned constitutional precedent by designating captured terrorist Jose Padilla an “enemy combatant” and holding him without trial. Indeed, the administration has relied heavily on Quirin as the basis of its argument in Rumsfeld v. Padilla, a watershed case now before the Supreme Court.


Padilla is better known as the “Dirty Bomber,” the American citizen who, according to government officials, received explosives training from al Qaeda operatives in Pakistan and Afghanistan, and later plotted with al Qaeda lieutenant Abu Zubaydah to detonate a radiological bomb in the United States. Padilla was arrested at Chicago’s O’Hare International Airport in May 2002. Since being classified as an enemy combatant, he has been detained in a South Carolina naval brig.

Last December, New York’s Second Circuit Court of Appeals ruled, in a 2-1 decision, that the Quirin precedent did not give Bush the authority to exercise military jurisdiction over U.S. citizens such as Padilla. It ordered that Padilla be released within 30 days or else formally charged in a civilian court, claiming his detention was illegal under Title 18, Section 4001(a) of the U.S. Code. Known as the “Non-Detention Act,” Section 4001(a) states, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” According to the Second Court, Bush lacked such “congressional authorization,” since Congress never officially declared war after Sept. 11 (as it did against Nazi Germany after Pearl Harbor). Nor did the administration have constitutional authority “to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat.”

But consider the joint resolution passed by Congress on Sept. 14, 2001, the template for the war in Afghanistan. It read in part, “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States.” If that isn’t “congressional authorization,” what is?

As for the “zone of combat” argument? Well, when facing an enemy whose tactics are directed chiefly at civilians far removed from the conventional battlefield, we might say that the entire American homeland is potentially a “zone of combat.” Moreover, the Quirin Court made short work of this argument in 1942. It said that American citizens who enter U.S. territory during wartime “in civilian dress and with hostile purpose” are “enemy belligerents,” plain and simple. Whether they are physically captured in the “zone of active military operations” matters for naught.

Rumsfeld v. Padilla is closely related to another case currently before the Court: Hamdi v. Rumsfeld, which concerns a U.S. citizen, Yaser Hamdi, captured in Afghanistan fighting with the Taliban. The issue at stake is whether the president can hold him indefinitely as a battlefield detainee. Richmond’s Fourth Circuit Court of Appeals has affirmed this right as a constitutional war power.

At root, the premises of Padilla and Hamdi are twofold. First, America is either justified in responding to al Qaeda and its allies by invoking the laws of war—as opposed to relying on the criminal-justice system—or it isn’t. Second, our enemies’ terrorist methods are either legal under the rules and customs of war, or they aren’t. No amount of pedantic hairsplitting over “civil rights” and “due process” is going to work if it ignores those awkward, obvious questions.

Duncan M. Currie ’04, is a history concentrator in Leverett House. His column appears regularly.