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1 Syllabus.

States . . . and went behind such lines, contrary to the law of war, in civilian dress ... for the purpose of committing . . . hostile acts, and, in particular, to destroy certain war industries, war utilities and war materials within the United States." Held:

(1) That the specification sufficiendy charged an offense against the law of war which the President was authorized to order tried by a military commission; notwithstanding the fact that, ever since their arrest, the courts in the jurisdictions where they entered the country and where they were arrested and held for trial were open and functioning normally. Ex parte Milligan, 4 Wall. 2, distinguished. Pp. 21, 23, 36, 48.

(2) The President's Order of July 2, 1942, so far as it lays down the procedure to be followed on the trial before the Commission and on the review of its findings and sentence, and the procedure in fact followed by the Commission, were not in conflict with Articles of War 38,43,46, 50y2 and 70. P. 46.

(3) The petitioners were in lawful custody for trial by a military commission; and, upon petitions for writs of habeas corpus, did not show cause for their discharge. P. 47.

5. Articles 15, 38 and 46 of the Articles of War, enacted by Congress, recognize the "military commission" as an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by courts-martial. And by the Articles of War, especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenses against the law of war in appropriate cases. Pp. 26-28.

6. Congress, in addition to making rules for the government of our Armed Forces, by the Articles of War has exercised its authority under Art. I, § 8, cl. 10 of the Constitution to define and punish offenses against the law of nations, of which the law of war is a part, 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. And by Article of War 15, Congress has incorporated by reference, as within the jurisdiction of military commissions, all offenses which are defined as such by the law of war and which may constitutionally be included within that jurisdiction. Pp. 28, 30.

7. This Court has always recognized and applied the law of war as including that part of the law of nations which prescribes, for the Syllabus. 317 U.S.

conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. P. 27.

8. The offense charged in this case was an offense against the law of war, the trial of which by military commission had been authorized by Congress, and which the Constitution does not require to be tried by jury. Ex parte Milligan, 4 Wall. 2, distinguished. P. 45.

9. By the law of war, lawful combatants are subject to capture and detention as prisoners of war; unlawful combatants, in addition, are subject to trial and punishment by military tribunals for arts which render their belligerency unlawful. P. 30.

10. It has long been accepted practice by our military authorities to treat 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, aa unlawful combatants punishable as such by military commission. This practice, accepted and followed by other governments, 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. P. 35.

11. Citizens of the United States who associate themselves with the military arm of an enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war. P. 37.

12. Even when committed by a citizen, the offense here charged is distinct from the crime of treason defined in Article III, § 3 of the Constitution, since the absence of uniform essential to one is irrelevant to the other. P. 38.

13. Article III, § 2, and the Fifth and Sixth Amendments of the Constitution did not extend the right to demand a jury to trials by military commission or require that offenses against the law of war, not triable by jury at common law, be tried only in civil courts. P. 38.

14. Section 2 of the Act of Congress of April 10, 1806, derived from the Resolution of the Continental Congress of August 21, 1776, and which imposed the death penalty on alien spies "according to the law and usage of nations, by sentence of a general court martial," was a contemporary construction of Article III, § 2 of the Constitution and of the Fifth and Sixth Amendments, as not foreclosing trial by military tribunals, without a jury, for offenses against the law of war 1 Statement of the Case.

committed by enemies not in or associated with our Armed Forces. It is a construction which has been followed since the founding of our government, and is now continued in the 82nd Article of War. Such a construction is entitled to great respect. P. 41.

15. Since violation of the law of war is adequately alleged in this case, the Court finds no occasion to consider the validity of other specifications based on the 81st and 82nd Articles of War, or to construe those articles or decide upon their constitutionality as so construed. P. 46.

Leave to file petitions for habeas corpus in this Court denied.

Orders of District Court (47 F. Supp. 431), affirmed.

The Court met in Special Term, on Wednesday, July 29, 1942, pursuant to a call by the Chief Justice having the approval of all the Associate Justices.

The Chief Justice announced that the Court had convened in Special Term in order that certain applications might be presented to it and argument be heard in respect thereto.

In response to an inquiry by the Chief Justice, the Attorney General stated that the Chief Justice's son, Major Lauson H. Stone, U. S. A., had, under orders, assisted defense counsel before the Military Commission, in the case relative to which the Special Term of the Court was called; but that Major Stone had had no connection with this proceeding before this Court. Therefore, said the Attorney General, counsel for all the respective parties in this proceeding joined in urging the Chief Justice to participate in the consideration and decision of the matters to be presented. Colonel Kenneth C. Royall, of counsel for the petitioners, concurred in the statement and request of the Attorney General.

The applications, seven in number (ante, p. 1, n. 1), first took the form of petitions to this Court for leave to file petitions for writs of habeas corpus to secure the release of the petitioners from the custody of Brigadier General

Argument for Petitioners. 317U.S.

Albert L. Cox, U. S. A., Provost Marshal of the Military District of Washington, who, pursuant to orders, was holding them in that District for and during a trial before a Military Commission constituted by an Order of the President of the United States. During the course of the argument, the petitioners were permitted to file petitions for writs of certiorari, directed to the United States Court of Appeals for the District of Columbia, to review, before judgment by that Court, orders then before it by appeal by which the District Court for the District of Columbia had denied applications for leave to file petitions for writs of habeas corpus.

After the argument, this Court delivered a Per Curiam Opinion, disposing of the cases (footnote, p. 18). A full opinion, which is the basis of this Report, was filed with the Clerk of the Court on October 29, 1942, post, p. 18.

Colonel Kenneth C. Royall and Colonel Cassius M. Dowell had been assigned as defense counsel by the President in his Order appointing the Military Commission. Colonel Royall argued the case and Colonel Dowell was with him on the brief.

Enemy aliens may resort to habeas corpus. Ex parte Milligan, 4 Wall. 2, at pp. 115-121; Kaufman v. Eisenberg, 32 N. Y. S. 2d 450; Ex parte Orozco, 201 F. 106; Ex parte Risse, 257 F. 102; 55 Harvard L. Rev. 1058; 31 Ops. Atty. Gen. 361.

50 U. S. C. § 21 relates only to internment and does not authorize a proclamation denying to alien enemies the right to apply for writ of habeas corpus.

The 82nd Article of War, which provides for trial and punishment of spies by courts-martial or by military commission, must be construed as applying only to offenses committed in connection with actual military operations, or on or near military fortifications, encampments, or installations.

I 1 Argument for Petitioners.

Mere proof that persons in uniform landed on the American coast from a submarine, or otherwise, does not supply any of the elements of spying. None of the petitioners committed any acts on, near, or in connection with any fortifications, posts, quarters, or encampments of the Army; or on, near, or in connection with any other military installations; or at any location within the zone of operations. 2 Wheaton, Int. L., 6th Ed., 766; 2 Oppenheim, Int. L., 1905 Ed., 161; Halleck, Int. L., 3d Ed., 573. In the absence of evidence of any acts within this zone, there is no authority for a military commission under Article of War 82.

That the acts alleged to have been committed by the petitioners in violation of the 81st Article were not in the zone of military operations would also preclude the jurisdiction of a military commission to try this offense. See 18 U. S. C. § 1; 50 U. S. C. §§ 31^2, 101-106. The petitioners were arrested by the civil authorities, waived arraignment before a civil court, and also waived removal to another federal judicial district. The civil courts thereby acquired jurisdiction; and there was no authority for the military authorities to oust these courts of this jurisdiction.

The Rules of Land Warfare describe no such offense as that set forth in the specifications of the first charge. These Rules were prepared in 1940 under the direction of the Judge Advocate General, and purport to include all offenses against the law of war.

The so-called law of war is a species of international law analogous to common law. There is no common law crime against the United States.

The first charge sets out no more than the offenses of sabotage and espionage, which are specifically covered by 50 U. S. C, §§ 31-42,101-106, and which are triable by the civil courts.

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