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Argument for Respondent.

invaders. He declared that all such persons should be subject to the law of war and triable by military tribunals. He removed whatever privilege such persons might otherwise have had to seek any remedy or maintain any proceeding in the courts of the United States.

These acts were clearly within his power as Commander in Chief and Chief Executive, and were lawful acts of the sovereign-the Government of the United States-in time of war.

The prisoners are enemies who fall squarely within the terms of the President's proclamation. Cf. Trading with the Enemy Act of 1917, §§ 2, 7 (b).

To whatever extent the President has power to bar enemies from seeking writs of habeas corpus, he clearly has power to define "enemy" as including a class as broad as that described in the Trading with the Enemy Act.

Even if it be assumed that Burger and Haupt are citizens of the United States, this does not change their status as "enemies" of the United States. Hall, Int. L. (1909) 490497; 2 Oppenheim, Int. L. (1940) 216-218. This rule applies to all persons living in enemy territory, even if they are technically United States citizens. Miller v. United States, 11 Wall. 268; Juragua Iron Co. v. United States, 212 U. S. 297, 308. The return of Burger and Haupt to the United States can not by any possibility be construed as an attempt to divest themselves of their enemy character by reassuming their duties as citizens.

The offenses charged against these prisoners are within the jurisdiction of this military commission. Articles of War 81 and 82 (10 U. S. C., §§ 1553-4).

The law of war, like civil law, has a great lex non scripta, its own common law. This "common law of war" (Ex parte Vallandigham, 1 Wall. 243, 249) is a centuriesold body of largely unwritten rules and principles of international law which governs the behavior of both soldiers

Argument for Respondent.

317 U.S.

and civilians during time of war. Winthrop, Military Law and Precedents (1920), 17, 41, 42, 773 ff.

The law of war has always been applied in this country. The offense for which Major André was convicted-passing through our lines in civilian dress, with hostile purpose is one of the most dangerous offenses known to the law of war. The other offenses here charged-appearing behind the lines in civilian guise, spying, relieving the enemy, and conspiracy-are equally serious and also demand severe punishment. See Digest of Opinions of Judge Advocate General, Howland (1912), pp. 1070–1071. Cf. Instruction for the Government of Armies of the United States in the Field (G. O. 100, A. G. O. 1863) § I, par. 13; Davis, Military Law of the United States (1913), p. 310; Rules of Land Warfare, §§ 348, 351, 352; Article of War 15.

The definition of lawful belligerents appearing in the Rules of Land Warfare (Rule 9) was adopted by the signatories to the Hague Convention in Article I, Annex to Hague Convention No. IV of Oct. 18, 1907, Treaty Series No. 539, and was ratified by the Senate of the United States. 36 Stat. 2295. Our Government has thus recognized the existence of a class of unlawful belligerents. These unlawful belligerents, under Article of War 15, are punishable under the common law of war. See text writers, supra; Ex parte Vallandigham, 1 Wall. 243, 249.

Military commissions in the United States derive their authority from the Constitution as well as statutes, military usage, and the common law of war. Const., Art. I; Art. II, § 2 (1). In Congress and the President together is lodged the power to wage war successfully. Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 426.

Military commissions have been acknowledged by Congressional statutes which have recognized them as courts of military law. Articles of War 15, 38, 81, 82; 10 U. S. C.

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§§ 1486, 1509, 1553, 1554. Their authority has also been recognized in presidential proclamations and orders, rulings of the courts, and opinions of the Attorneys General.

The offenses charged here are unquestionably within the jurisdiction of military commissions. The prisoners are charged with violating Articles of War 81 and 82 (10 U. S. C., §§ 1553-4) which specifically provide for trial by military commission. They are also charged with violating the common law of war in crossing our military lines and appearing behind our lines in civilian dress, with hostile purpose, and with conspiring to commit all the above violations, which in itself constitutes an additional violation of the law of war. The jurisdiction of military commissions over these offenses under the law of war (in addition to the specific offenses codified in the Articles of War) is expressly recognized by Article of War 15 (10 U. S. C. § 1486).

The military commission has jurisdiction over the persons of these prisoners. Ex parte Milligan, 4 Wall. 2, 123, 138-139. The offenses charged here arise in the land or naval forces. The law of war embraces citizens as well as aliens (enemy or not); and civilians as well as soldiers are all within their scope. Indeed it was for the very purpose of trying civilians for war crimes that military commissions first came into use. Winthrop, Military Law and Precedents (1920) 831-841.

This broad comprehension of persons is well within the limits of the excepting clause of the Fifth Amendment. That clause has been almost universally construed to include civilians. Wiener, Manual of Martial Law (1940), 137; Morgan, Court-Martial Jurisdiction over Nonmilitary Persons under the Articles of War, 4 Minn. L. Rev. 79, 107; Winthrop, Military Law and Precedents (1920 ed.) 48, 767; Fletcher, The Civilian and the War Power, 2 Minn. L. Rev. 110, 126; 16 Op. Atty. Gen. 292; Ex parte Wildman, 29 Fed. Cas. 1232. Such construction

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is founded in common sense: of all hostile acts, those by civilians are most dangerous and should be punished most severely.

By the law of war, war crimes can be committed anywhere "within the lines of a belligerent." Oppenheim's Int. L. (Lauterpacht's 6th ed. 1940) 457. Having violated the law of war in an area where it obviously applies, offenders are subject to trial by military tribunals wherever they may be apprehended. Congress may grant jurisdiction to try civilians for offenses which "occur in the theatre of war, in the theatre of operations, or in any place over which the military forces have actual control and jurisdiction." Cf. Morgan, supra, at 107; Wiener, supra, at 137. Neither the Bill of Rights nor Ex parte Milligan grants to such persons constitutional guarantees which the Fifth Amendment expressly denies to our own soldiers. Cf. 2 Warren, The Supreme Court in United States History (1937) 418; Corwin, The President: Office and Powers (2d ed. 1941) 165; United States v. McDonald, 265 F. 754. The test of whether or not the civil courts are open to punish civil crimes is too unrealistic a test to be applied blindly to all exercises of military jurisdiction.

The judgment of the President as to what constitutes necessity for trial by military tribunal should not lightly be disregarded. Prize Cases, 2 Black 635. The English courts have not only long since rejected the doctrine of Ex parte Milligan, which they once accepted, but also have recently sustained a wide discretion granted to the Executive for the detention of persons suspected of hostile associations. Liversidge v. Anderson, [1942] 1 A. C. 206; Greene v. Secretary of State for Home Affairs, [1942] 1 A. C. 284.

Courts do not inquire into the Executive's determination on matters of the type here involved. Martin v. Mott, 12 Wheat. 19. Cf. United States v. George S. Bush

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& Co., 310 U. S. 371; United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 320; Dakota Central Tel. Co. v. South Dakota, 250 U. S. 163. Even if it be assumed that the President's nomination of a military commission to try war criminals, as specified by Congress, must be tested by the "actual and present necessity" criterion of the majority opinion in the Milligan case, this Court will not review the President's judgment save in a case of grave and obvious abuse. Moyer v. Peabody, 212 U. S. 78; Sterling v. Constantin, 287 U. S. 378.

The Commission was legally convened and constituted. Kurtz v. Moffitt, 115 U. S. 487, 500; Keyes v. United States, 109 U. S. 336.

The procedure and regulations prescribed by the President are proper. Article of War 43, requiring unanimity for a death sentence, refers to courts-martial. It has no application to charges referred to a military commission. The President's order did not make improper provision for review, Articles of War 46, 48, 5011⁄2 and 51 considered. There was no improper delegation of rule-making

power.

The doctrine of unconstitutional delegation of powers relates only to the improper transfer of powers from one of the three branches of the government to another. It has nothing to do with delegations by the Chief Executive to his military subordinates within the executive branch. Military courts "form no part of the judicial system of the United States." Kurtz v. Moffitt, 115 U. S. 487, 500.

Objections to the actions of the Commission on a variety of grounds, ranging from its refusal to permit peremptory challenges to its rulings on the admissibility and sufficiency of evidence, are not cognizable by this Court. The writ of habeas corpus can only be used to question the jurisdiction of a military tribunal. It cannot be converted into a device for civil court review.

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