- The Washington Times - Monday, March 27, 2006

Friends of Frederick Bernays Wiener, who died in 1996, will be amazed to learn he is back at the rostrum in the cutaway at the Supreme Court. Four legal scholars and historians have paraded Col. Wiener — lawyer,soldier, scholar — in an amicus brief filed in Hamdan v. Rumsfeld, pending in the Supreme Court. The case challenges the constitutionality of President Bush’s Military Order commanding that al Qaeda terrorists be tried by military tribunal — a “burning issue,” to quote one of Col. Wiener’s favorite locutions.

Assuredly, Col. Wiener was a “military justice expert,” as amici say of him in their brief. Justice Douglas called Fritz Wiener “our foremost military law authority” in his review of Col. Wiener’s Civilians Under Military Justice (1967). But amici’s parading Col. Wiener at the bar of the Supreme Court on behalf of Hamdan is a forced march of half-truths.

Mr. Rumsfeld says Hamdan is an enemy combatant. He was Osama bin Laden’s personal bodyguard and driver, now accused of conspiracy to commit acts of war against the United States. Mr. Bush has designated Hamdan to be tried by military commission.

This upsets amici scholars and historians who condemn Mr. Bush’s effort. They aim to sink Ex parte Quirin (1942), the Supreme Court opinion upholding President Roosevelt’s trying Nazi saboteurs by military tribunal during World War II. “Quirin should be repudiated,” (amici brief, p.15) amici shout in their brief. Col. Wiener calls this kind of advocacy “unwarranted screaming” in his classic guide Effective Appellate Advocacy (1950).

Arguing Quirin should be overruled is somewhat strange, the colonel might say, since a mere two years ago, in Hamdi v. Rumsfeld, a plurality of the court followed the very case amici seek to kill. Perhaps these scholars and historians think the court will change its mind.

But for purposes of the instant plea to Clio, muse of history, what the court will do in fact is irrelevant. What is at stake is the morality of scholarship and Col. Wiener’s insistence on accuracy and candor in briefs filed in the Supreme Court. This was a matter of personal honor with him, nothing less.

In short, telling the court that “Wiener remained critical of Quirin for the rest of his life” (amici brief, p.15) is distorted history and treacherous scholarship. In fact, here is what Col. Wiener wrote to Justice Frankfurter in the very memoranda unearthed by amici themselves on the Nazi saboteur case — Col. Wiener’s concluding observations in his third memorandum (Aug. 1, 1943) on Ex parte Quirin — set forth in “exact transcripts”: Now for the significance of the case as a whole: I think that the importance of Ex parte Quirin in the largest sense is that it outlines a head of military jurisdiction, which, although long recognized, has never heretofore been isolated in civil litigation.

We are all familiar with the usual division of military jurisdiction into three headings, military law, military government and martial law, a classification which first made its appearance in the concurring opinion in the Milligan case. But where can Ex parte Quirin be placed in that arrangement?

It did not involve military law, because Quirin et al. were not members of our armed forces. It was not an instance of military government, because the Eastern United States was not occupied territory. And it was not a matter of martial law, or martial rule, because no government was being carried on by military agencies and no civil agencies were superseded.

The fact of the matter was that the case dealt with something entirely outside the scope of civil government, a violation of the laws of war. This was a matter which, as the court recognized, had always been beyond the competence of civil courts.

The result is that, in my opinion, we now have or rather, we can now clearly recognize and distinguish, a fourth division of military jurisdiction, namely, offenses against the laws of war. That, to me, is the real significance of Ex parte Quirin, and the reason why it will be regarded in the future as a landmark in the field.

What would Col. Wiener say about trying Hamdan by military tribunal? Doubtless this old soldier of the law would enjoy untying this legal knot.

The point here, however, is that the very last sentence in Col. Wiener’s memoranda to Justice Frankfurter — the “best evidence” — is nowhere to be found in the Legal Scholars and Historians’ friend-of-the-court brief: The significance of Ex parte Quirin in this connection is that it recognizes that the trial of these war criminals may and should be by military tribunal.

Clio take note.

Paul R. Baier is the George M. Armstrong Jr. Professor at the Louisiana State University’s Law Center.

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