How to Get Quirin Right When Quirin Was Wrong

by Jens David Ohlin

On Monday, the defense in the Al Bahlul case filed their reply brief. The case is important because it squarely presents the issue that was left hanging after Hamdan, i.e. whether the military commissions have jurisdiction to try inchoate conspiracy. It also raises the far deeper question of whether the jurisdiction of the military commissions is limited to offenses against the law of nations (the international law of war), or whether the military commission’s jurisdiction to try law of war offenses includes domestic offenses as well. The government has repeatedly argued in the past that historically U.S. commissions were used to try violations of the common law of war, such as conspiracy. If that argument holds water, then it does not really matter whether inchoate conspiracy is an international offense or not.

There has been a lot of commentary on this issue, and it seems to me that the heart of the dispute has to be Quirin, the German saboteurs case during World War II. In that case, the petitioners were prosecuted before a military commission after landing in the U.S., burying their uniforms, and setting afoot with orders to commit acts of sabotage against strategic installations. They were convicted by military commission and appealed to the Supreme Court.

The problem with the Quirin precedent is that the Supreme Court probably assumed that spying and sabotage were international offenses, which they are not. The proper understanding of the situation, which was correctly identified by Baxter in his famous article, was that the belligerents in Quirin were not entitled to the privilege of belligerency and therefore liable for prosecution under domestic law. But being unprivileged and subject to domestic prosecution is not the same as committing an international offense.  For what is worth, the best reading of Quirin is that the Supreme Court conflated these two situations:

By a long course of practical administrative construction by its military authorities, our Government has likewise recognized that those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission. This precept of the law of war has been so recognized in practice both here and abroad, and has so generally been accepted as valid by authorities on international law that we think it must be regarded as a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War.

This specification so plainly alleges violation of the law of war as to require but brief discussion of petitioners’ contentions. As we have seen, entry upon our territory in time of war by enemy belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and war-like act. It subjects those who participate in it without uniform to the punishment prescribed by the law of war for unlawful belligerents. It is without significance that petitioners were not alleged to have borne conventional weapons or that their proposed hostile acts did not necessarily contemplate collision with the Armed Forces of the United States. Paragraphs 351 and 352 of the Rules of Land Warfare, already referred to, plainly contemplate that the hostile acts and purposes for which unlawful belligerents may be punished are not limited to assaults on the Armed Forces of the United States. Modern warfare is directed at the destruction of enemy war supplies and the implements of their production and transportation quite as much as at the armed forces. Every consideration which makes the unlawful belligerent punishable is equally applicable whether his objective is the one or the other. The law of war cannot rightly treat those agents of enemy armies who enter our territory, armed with explosives intended for the destruction of war industries and supplies, as any the less belligerent enemies than are agent similarly entering for the purpose of destroying fortified places or our Armed Forces. By passing our boundaries for such purposes without uniform or other emblem signifying their belligerent status, or by discarding that means of identification after entry, such enemies become unlawful belligerents subject to trial and punishment.


The Quirin decision is notoriously difficult to read because the court is inexact with its language. It appears to me that the Court assumed that an unprivileged belligerent who commits an offense out of uniform would be guilty of an international offense — a conclusion that does not follow. In reality, spying and related offenses are not, and were not, international offenses, but where offenses against domestic law, albeit ones that are mirrored in some way in almost every nation.

Herein lies the problem: How do you correctly interpret Quirin when Quirin‘s jurisdictional theory is built on a mistake? In my view, the correct reading is that Quirin stands for the proposition that military commissions are limited to prosecuting international offenses because that is what the Supreme Court believed spying to be. The fact that spying is a domestic offense does not, and should not, transform its holding into a much broader jurisdictional theory: that military commissions have jurisdiction over domestic offenses as well. True, the Supreme Court in Quirin upheld the military commission’s jurisdiction over spying, and spying is a domestic offense, but in reality the court was upholding the jurisdiction over spying-qua-international-offense, a category that unfortunately is a null set.

The defendant’s reply brief does not take this line. Rather, the defense makes the much simpler argument that spying was indeed an international offense, and that both the government today and Baxter got this wrong.  Here is the crucial paragraph in Al Bahlul’s brief:

Regardless of this article’s scholarly merits, Quirin is the authoritative law
in this case. And regardless of whether spying’s status changed after the Second World War, Quirin had a wealth of precedent and international legal authority
behind it in 1942. Lassa Oppenheim, International Law 2:223 (1921)
(“Oppenheim”) (“persons committing acts of espionage or war treason are – as will be shown below – considered war criminals and may be punished[.]”), Supp.App. 53; Henry Halleck, International Law 1:628-29 (1908) (“Halleck”) (“The act of spying is an offence against the laws of war alone; it is no crime in time of peace”), Supp.App. 36-37; George Davis, Outlines of International Law 241 (1887) (including spying within the “Crimes and Offences against the Laws of War” and a “crime[] at International Law[.]”), Supp.App. 13-14; Winthrop, at 770 (“By the law of nations the crime of a spy is punishable with death.”), Supp.App. 89; M. de Vattel, The Law of Nations 375 (1758) (describing spying as a form of treachery), Supp.App. 5; Military Commissions, 11 Op. Att’y Gen. 297, 312 (1865)
(“Infractions of the laws of nations are not denominated crimes, but offenses. …
[Acting as] a spy is an offense against the laws of war”); Hague Convention (IV)
Respecting the Laws and Customs of War on Land and Its Annex, Oct. 18, 1907,
36 Stat. 2277, arts. 29-31 (regulating the punishment of spies). In fact, the very
first spying statute, passed in 1776, stated that spies should “suffer death according to the law and usage of nations.” Supp.App. 49-50.

While this is a conceptually clean argument, I don’t find it persuasive. Oppenheim’s quote simply asserts that spies are criminals without labeling the offense as domestic or international; Halleck too refers to it as an offense against the laws of war without calling it an international offense, the issue at bar here. Winthrop refers to it as a rule of the law of nations, although the quote does not say whether the offense itself is international or simply whether the law of nations dictates that spies are unprivileged (and by extension liable for punishment of domestic crimes), which is a far different matter. Vattel refers to it as treachery which again doesn’t speak to the classification issue. Finally, the Hague Convention regulates the manner in which spies will be punished, which again does not logically entail the crime’s classification as an international offense. That leaves the Davis quote as the only one that directly speaks to the international nature of the offense.

So my argument is different from the government’s argument and different from the defendant’s argument, although in result I side with Bahlul. Quirin stands for the proposition that military commissions prosecute international offenses, but not because the offenses in Quirin actually were international offenses, but simply because the Supreme Court (incorrectly) assumed that to be the case. And I think this mistake (conflating international offenses with unprivileged conduct violating domestic law) is an easy one to make and one that was more common in the past than it is today. Interpretation demands that we find the deeper principle in Quirin, and that is that military commissions prosecute international offenses.

14 Responses

  1. The war crime that the Supreme Court addressed in Quirin can be considered the one that pertains today: being out of uniform while committing “hostile acts involving destruction of life or property,” e.g., if a combatant is out of uniform while engaging in combat.
    The error in Quirin, at least as we consider the issue today, involves the question whether a combatant can become an unprivileged fighter by being out of uniform. U.S. soldiers often fight in camouflage and should not, thereby, loose combatant status and combatant immunity for lawful acts of war. Combatant status, at least today (as under the Lieber Code — so soons as one takes the oath, etc.), hinges on membership in the regular armed forces of a party to an international armed conflict. See Paust, Bassiouni, et al., International Criminal Law 686 (4 ed. 2013), also noting that language in Quirin “can create confusion.”
    In any event, the law of war is the law of war under international law — there is no separate U.S. domestic law of war that is not int’l law of war. Quirin recognized, however, that a federal statute incorporated all of the laws of war as offenses against the laws of the United States “by reference.” T

  2. Jens,

    This is a thoughtful argument but I tend to disagree with you. I think the problem yet to be resolved, and that you do not clearly address, is how to understand what constitute “offenses against the law of nations” or “international offenses” or “war crimes” for purposes of U.S. military commissions when at their inception and at the time of Quirin international law did not affirmatively prescribe or require punishment for any violation of the law of war. I think my description of such violations as a “domestic common law offense” in the Journal of International Criminal Justice may have been wrong except as it related to punishment by courts-martial.

    If we think about the jurisprudential origins of “punishment” for law of war violations, they appear to rest in natural law. All violations of the law of war were once subject to “reprisal” or “retaliation,” which at the time was a reciprocal violation of the law to punish a past violation and deter future violations (unlike today’s “countermeasures,” which are not supposed to “punish”). Given the natural law origins of the law of nations and the law of war as well as the authority to punish violations through retaliation, violations appear to have been considered “malum in se” or intrinsically wrongful. Therefore, the authority to punish in this way came not from domestic law, but from the inherently wrongful nature of a violation of international law.

    The move toward punishing individuals rather than through retaliation, at least in the U.S., further amplifies the “malum in se” approach. Winthrop related individual punishment to a conditional power to retaliate. According to Winthrop, if an individual violated the law of war and was in the custody of the state against whom the violation occurred, they were to be individually punished. If they had not been captured, and if the country on whose behalf they fought did not punish them for the violation, then the right of retaliation attached. Thus, it seems that the inherent power to punish the individual for a law of war violation also originates in international rather than domestic law. That must be why FM 27-10 stated that punishment of law of war violations by military commission occurs “directly under international law without recourse to the statutes of the United States.”

    It therefore seems that in the U.S., any time international law removes or does not provide the protection of combatant immunity to an act of hostilities (which must by definition occur in the context of armed conflict, whether international or non-international), an individual may be punished. How this punishment is characterized or its source would seem to be a matter of domestic rather than international law. In other words, a dualist or civil law country would likely be unable to punish without domestic law prescribing a crime. Under our separation of powers, the power to punish law of war violations by foreign enemies rests in the war powers of Congress and the President. While pre-MCA military commissions required that punishable offenses must be law of war violations (but see Yamashita for how deferential judicial review could be in this area), Congress is not so limited in it’s exercise of the war power. Therefore, offenses prescribe by Congress need only aim to punish what it reasonably considers unlawful acts of hostilities in armed conflict.

    That’s a short run though of the argument in my incomplete draft article on the topic. I go into greater detail there, address conspiracy and “murder in violation of the law of war,” and demonstrate the reliance on malum in se in the Londpn Charter, at ad hoc tribunals, and in the Rome Statute’s definition of offenses.

    (As this argument indicates, I do not believe Quirin was correct to say that Congress’s preservation of military commission jurisdiction in the Articles of War and UCMJ was an exercise or delegation of its Offenses Clause power. There is other precedent that broadly places it in the war power alone.)

  3. Jordan, attacking a legitimate military target as an unprivileged belligerent is not an international crime. It is unprivileged conduct that makes one liable for domestic criminal liability. Killing perfidiously is a war crime, I suppose, but that’s a different matter.

  4. Jens David: I agree, it is at best a domestic offense. However, today, privileged status, combatant status hinges on one criterion: membership in the regular armed forces. So today, one remains a combatant out of uniform, but one cannot engage in combat dressed like a civilian.
    With respect to “common law,” the Supreme Court had ruled in 1812 that there are no more common law crimes. Cases since had used customary international law directly (as in Henfield’s Case in 1793), but there are not too many after 1823, but a few.
    With respect to international law,
    the Supreme Court was decidedly focused on the international laws of war:
    “From the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. By the [1916] Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases. Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals…. [B]y the reference in the 15th Article of War to “offenders or offenses that … by the law of war may be triable by such military commissions”, Congress has incorporated by reference, as within the jurisdiction of military commissions, all offenses which are defined as such by the law of war” (emphasis added).
    And note: the U.S. had prosecuted violations of the laws of war since the formation of the U.S. without a federal statute implementing the laws of war all the way up to the enactment of the 1916 Act. The Supreme Court’s famous para. above demonstrates that the Court had no problem with direct incorporation of the customary and treaty-based laws of war for criminal sanction purposes.

  5. p.s. and there were cases for civil sanctions prior to WWI and WWII — see, e.g., Paust, Bassiouni, et al., ICL at 340-341

  6. I thought the problem with Quirin was that Roosevelt executed some of the Nazi saboteurs on the basis of the oral view given by the Supreme Court and before the written decision was done. I do not think that is normal. Thus it is a very result oriented set of words but hardly at least for me a decision worthy of precedential weight of anything other than the most modest kind. I never understood why it is given such credibility domestically.

  7. If you are a member of the US military and you are accused of a crime, you will be tried in a General Court Martial no matter whether the crime is exclusively domestic law or also a violation of international law. The jurisdiction of military courts is determined by the status of the accused and not by the nature of the charge. If you are an enemy soldier who has surrendered and is being held as a prisoner of war, then you may be tired by a US Court Martial, or you may be tried in a Military Commission. Congress provides Military Commissions to try enemy combatants, but in the absence of legislation, a legitimate enemy combatant can always be tried before a Court Martial without Congressional action.

    The more interesting questions involve the use of Military Commissions against civilians who become combatants by Direct Participation in Hostilities, and the use of Military Commissions to try enemy aliens who commit crimes against US soldiers in a theater of combat.

    Not all offenses are “crimes”, either domestic or international. Soldiers are charged with all sorts of military offenses that have no analog in civilian life. Insubordination, refusing to obey a direct order, sleeping at your post, absent without leave, conduct unbecoming, and so on are all military offenses that have no analogous “crime” in either domestic or international law.

    There is no actual charge of spying. The offense in Quirin was “passing through lines of defense without uniform”. This has nothing to do with spying, or the civilian crime of espionage. It also has a special rule, because if the enemy solider passes back through your lines and rejoins his army then the offense is cancelled out and he can never be charged with it. There is no comparable “home free” rule that cancels out a real crime.

    The Quirin defendants were in the US for 7 days before they were arrested. They did not commit espionage, because they learned no secrets. They did not commit sabotage because they damaged nothing. They were not conspirators, because they were acting under military orders and therefore did not “conspire” within the definition of the law. They were soldiers in an enemy army at war with the US who passed through US lines of defense and without uniform moved through our unprotected rear areas. It happens that their purpose was to blow things up, but intent is not a required element of the offense.

    This is not and never has been a violation of international law. No third country could charge the Quirin defendants for a violation of international law. Neither was it a crime. The only civilian crime the Justice department could identify was that having entered the US at a point that was not a port of entry, the defendants failed as required by law to report to the nearest customs office and make a proper customs declaration (punishable at the time by a maximum 18 months in prison). It is an offense against the Laws of War, which means that the offenders where the defendants and the Army of Germany and the offended party was the US Army. Under the Laws of War the US Army was authorized to try the offense against it. The Laws of War are part of the common law of international law, but that does not make offenses against the Laws of War crimes, nor does it mean that an Article III court could ever try the offense because jurisdiction is limited to Courts Martial and Military Commissions.

    The most interesting part of Qurin is Footnote 9:

    On September 29, 1780, Major John Andre, Adjutant-General to the British Army, was tried by a “Board of General Officers” appointed by General Washington, on a charge that he had come within the lines for an interview with General Benedict Arnold and had been captured while in disguise and traveling under an assumed name. The Board found that the facts charged were true, and that, when captured Major Andre had in his possession papers containing intelligence for the enemy, and reported their conclusion that”Major Andre . . . ought to be considered as a Spy from the enemy, and that, agreeably to the law and usage of nations . . . , he ought to suffer death.”

    The Andre precedent is actually much better than the Quirin precedent that sites it, because in 1780 we don’t have any statutory authorization, or a Constitution, or a body of criminal law based on the Continental Congress. Andre is tried on a pure Laws of War common international law justification, but clearly based in a bilateral, not an international, theory of offense. The British get to hang Nathan Hale, and the US gets to hang Major Andre for the same offense committed by each side against the other.

  8. Two thoughts on Prof. Ohlin’s thoughtful post.

    First, I have always thought it significant that the Quirin Court described the law of war “as INCLUDING that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals.” Ex Parte Quirin, 317 U.S. 1, 27-28 (emphasis added). The Court could have omitted the word “including,” and simply said that the law of war is that part of the law of nations that deals with conduct in war, if it viewed the law of war as simply the international law of war. By using the word “including,” it seems to me, the Court implied that it viewed the law of war as broader than simply international law. Combined with attention the Court paid to domestic precedents in its analysis, it seems reasonable to me to read Quirin as supporting the idea that U.S. military commissions may exercise jurisdiction over a broader range of offenses in war than solely international law violations.

    Second, I wonder whether 19th Century writers on the law of war, such as Winthrop, Halleck and others would have understood the Baxter distinction between municipal offenses and “international law offenses”. It seems likely to me that, at least back in the late 19th Century, at least in the law of war field, practitioners and scholars probably did not think in terms of a body of affirmative international law offenses existing outside a state’s legal regime; rather, they probably looked to the “customs and usages of civilzied nations at war.” People like Winthrop and Halleck would probably have looked around the world and asked ‘What do civilized nations do with spies?’ They would have observed that all civilized nations punished captured spies in wartime, and concluded that punishgin spies was in accord with the customs and usages of war. I tend to think they would probably not have distinguished whether the “source” of the offense of spying was domestic or international law, since they didn’t have the same robust concept of “international law” as a positive body of law existing outside of the practice of states. I’d be interested in what others think of that observations.

    Finally, Ben, if I am not mistaken, the Supreme Court issued a summary ruling denying the writ petition before the sentence was carried out, and then issued their written opinion later, after the sentence had been carried out. In other words, the Court had decided the case and ruled before the sentence was carried out.

  9. Ed: I think you have gone astray in several respects. First, there have been other actors with formal participatory roles in international law for the last few hundred years, including nations, peoples, tribes, free cities, belligerents (as opposed to insurgents with the coming of the 1949 GCs, common art. 3). Lieber did not look to merely the practice of states or opinio juris of states.
    Second, war crimes have been prosecuted as such (as violations of the law of nations (CIL) and treaties) since the dawn of the U.S. — as the S.Ct. implies in the famous para. in Quirin. There is a rich history of use of the international law of war, and there is no other.
    Third, it is not unusual to look to any relevant domestic (U.S. and foreign) evidences of practice and opinio juris, textwriters (U.S. and domestic), and thus “domestic precedents” and customs and usage (or long term practice) among the many formal actors known to have formal participatory roles since the 1700s. see, e.g., The Paquete Habana, US 1900 and 1903 on the proof of the customary international laws of war, the fact that the President is bound, etc.
    Fourth, the history of international law (“outside” merely domestic law) is also rich, including human rights law.
    Fifth, Winthrop published his book on milt. law in 1920.
    Sixth, it would not be unusual to address the international law of war as “including” the customary law of nations as well as relevant treaties (especially by 1942). Of course, the Court had recognized and applied the laws of war as including CIL.

  10. Ben: not sure, but some suggested that General Yamashita was executed before the S. Ct. ruling in his case was received in the Philippines.

  11. Ben: perhaps not, on google, I see that he was executed some 19 days after the S. Ct. decision in In re Yamashita and that his lawyers had asked President Truman for clemency.

  12. Jordan,

    I don’t think you really adequately address my point about the use of the word “including” by the Court in Ex Parte Quirin. The Court talks about the Law of War including the relevant portion of the “Law of Nations,” i.e. international law. As the sentence would make sense (but mean something different) without the word “including,” I must conclude the Court meant something by the use of that word, and to me it clearly suggests that the field of “law of war” is something broader than just the “law of nations” (or I-law).

    While, no doubt, there have been actors other than states on the world stage pretty much forever, Winthrop, Lieber and others did, I think, look largely to the “customs and usages” of nations at war in discerning what was prohibited and punishable in war. I don’t have Lieber materials at hand to consult, but I’m confident that Winthrop used the “customs and usages” formulation, as opposed to, say, “international law.”

    I don’t dispute that the U.S. has punished violations of the CIL and treaties for as long as there has been a United States; rather, my point was simply that, it seems to me, the earlier writers on the Law of War thought in somewhat different categories than the modern I-Law scholar, and that categorical difference in thought could, in part, explain the disconnect I think we have in applying the writings of those ealier writers to our modern situations. I think someone like Winthrop would have looked around the world and said to himself ‘the customs and usages of civilized nations at war are to punish captured spies with death by hanging, so that’s what the U.S. can/should.’ Having observed that such was the custom and usage of nations at war, I tend to think he would not have asked himself whether spying was a domestic or international law violation.

    I also agree that it is not unusual or odd to look to domestic, as well as foreign, precendent when trying to discern state practice, but I think it significant that the Supreme Court’s analysis is almost wholly focused on U.S. practice and precedent. As you know, U.S. practice alone does not CIL make. If the Supreme Court were really doing a true international law analysis/survey, then its analysis was woefully inadequate. On the other hand, it makes more sense if U.S. practice and experience supplements the Law of Nations.

    Finally, I’m not completely sure why you mention the 1920 publication date for Military Law & Precedent. But, since you brough it up, the SECOND edition of Winthrop’s Military Law & Precendents was posthumously published in 1920, twenty-one years after his death in 1899; the first edition was published in 1886.

  13. Ed: I did not have Winthrop at home when responding and remembered the 1920 date re: the vol. that I have — so good point re: the dates.
    Regarding treaty-based international law and customary international law, I note that the first use of the phrase “international law” in U.S. cases was around 1813 and that in the decades thereafter until today one can see a trend whereby use of the phrase “law of nations” shifted to attention to customary international law. It would not be unusual to say that the laws of war include relevant portions of the law of nations or customary international law — knowing that the laws of war also include relevant treaties or portions thereof. That, at least, was my point.

  14. To be more precise, one should not equate the 1942 use of “law of nations” with all of “international law.”
    On another point, do the customary laws of war include more than “status, rights and duties”?

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.