Summary affirmance is appropriate only where "the merits of this appeal are so clear as to make summary affirmance proper." Taxpayers Watchdoq. Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987); Ambach v, Bell, 686 F.2d 974, 979 (D.C. Cir. 1982) (per curiam); Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir.) (per curiam), cert. denied, 449 U,S. 994 (1980). Where review of the district court decision "reveals that it rests on an erroneous premise as to the pertinent law, however, [the Court of Appeals] must examine the decision in light of the legal principles [it] believe[s] proper and sound," and review is de novo. Ambach v. Bell, 686 F.2d 974, 979 (D.C. Cir. 1982), FTC v. H.J. Heinz & Co., App. No. 00-5362 (April 27, 2001). In this case, summary affirmance should be denied.

The government’s first reason why summary affirmance should be granted is that this court should defer to the agency decision regarding the merits of this case. It argues at page 8 of its Memorandum in Support of its Motion for Summary Affirmance, as it did below, that this Court should defer to the Army. Indeed, the Army proposes that, although this Court owes no deference to the legal views of the District Court judge on the matter of whether a man can be tried by a military court, this Court should accept that "the review of the [Army] Secretary’s findings are deferential," citing to Milk Industry Foundation v. Glickman, (D.C.Cir. 1998) and similar cases.

The issue in Glickman was whether Congress had consented to certain New England States which had determined to raise minimum prices for milk. Congress had appeared to consent, but had conditioned its consent on the Secretary of Agriculture making certain determinations. This Court held that this was a lawful delegation, and a legal and principled one, and held that the Secretary had wide discretion in making the determinations in an area of agency expertise, to which the courts should defer.

The Glickman case is nothing like the instant case. The issue is not milk price supports—it is nothing less than the Army’s claim of right to seize a citizen of the United States from his homestead and imprison him in a penal colony in the Dry Tortogas, without grand jury indictment, a jury, the right to present evidence, or due process of law. The Army claims that its officials have exclusive discretion to determine when and whether to try citizens of the United States before military tribunals, or whether it will permit the civilian courts to have them, and that the courts should defer to its determinations about the applicable law.

This case is not about whether a particular Army parking regulation means one thing or the other, or about whether the decision to buy a particular aircraft is justified or not justified. It is about whether the Army can imprison or hang civilians.

To believe that discretion should be given, according to the law set forth in Glickman itself and based upon generally accepted principles of deference to agency decisions, one must at least believe that (1) the Army has historically demonstrated special expertise in the area of determining what is Constitutionally lawful and (2) Congress has delegated broad powers to the Army to make such determinations. Merely to state the proposition is to refute it.

The district court judge put the proposition this way, "Since the statute [10 U.S.C. § 1552] authorizing the Secretary to correct military records gives the Secretary a great deal of discretion, the arbitrary and capricious standard is even more difficult to meet than in other agency review cases." District Court opinion, 26 F. Supp. 2d at 120.

What is the discretion that the district court believed the Secretary to have? It is nothing less than to decide what law governs, that is, whether Ex parte Quirin, supra, means one thing or the other, or whether Ex parte Milligan, supra, means what it says—that civilians are to be tried in civilian courts, notwithstanding any claims that they violated military law.

By giving deference to the Secretary of the Army in this, an area reserved especially to the Third Branch of government, and as to which the Third Branch has never yielded an iota to any government agency claiming more expertise, the judge applied an incorrect premise as to the correct law, and as set forth in Ambach v, Bell, supra, the decision must be reversed.

The district court judge decided that Secretary of the Army Henry had discretion to determine, as Appellee’s brief sets out at page 5, "that a military tribunal had jurisdiction to try ‘civilian belligerents for law of war and military violations’ without regard to whether the courts were in operation," and that therefore the Supreme Court case Ex parte Milligan, 71 U.S. 2 (1866) did not apply.

What standards would the Army apply to its extra-Constitutional power to seize citizens and deport them to penal colonies? The standard, according to the Army, is simplicity itself: If a person, albeit a citizen and albeit not an adherent to any military force, is charged with a violation of the law of war, then the military has jurisdiction. It matters not a whit whether the person is, or is not, a citizen of the United States, or of any State, or whether the civilian courts are open. The person may be wearing a uniform, or may not. There is no test at all, the Army argues at page 7, arguing for the rejection of the standard set out in Ex parte Quirin, to tell whether a person is a belligerent, but one must look only to whether the person is "charged with a violation of ‘the law of war’" by the military authorities. If the person, citizen or not, is so charged, then the Army would have the inquiry end.

There can be no such discretion. The courts, and not the Army, have the duty to declare what the law in this area shall be. The Army, and the district judge, rejected the test in Quirin itself as to whether a person was an enemy belligerent, but substituted and proposed no other test, except whether a person should happen to be charged with a violation of the law of war. Such a standard is no standard at all, and is arbitrary and capricious.

The Constitution provides that any American citizen who levies war against the United States, adheres to enemies of the United States, or gives aid and comfort to such enemies inside or outside the boundaries of the United States shall be tried for treason. The Constitution does not say that citizens who engage in this conduct may be tried for treason; nor does the Constitution say that they may be tried for violations of the law of war. The Constitution of the United States unequivocally states that citizens who levy war against the United States, or who cooperate with enemies of the United States, are guilty of treason and shall be punished as Congress may direct.

The Hunter Commission never charged Dr. Mudd with an offense against the law of war. The specific charge against him was:

The sole contact with forces in rebellion of those named in the Charge and Specification was that of "combining, confederating, and conspiring together with one … Jefferson Davis, George N. Sanders, Beverly Tucker, Jacob Thompson, William C. Cleary, Clement C. Clay, George Harper, George Young, and others unknown, to kill and murder, within the Military Department of Washington, …"

What is most notable about this list is that not a single member of it, as far as we can determine, was a member of the Confederate armed forces.

The importance of this cannot be overstated. Even though the Army’s standard cannot be correct—it cannot be that, while Constitution remains effect a citizen of the United States not adhering to any enemy forces but merely charged with law of war violations loses all rights to trial by jury, to present evidence, to be informed of the charges against oneself, to be indicted by a grand jury—even under the Army’s own standard, there is not a shred of evidence in the entire record in this case that Dr. Mudd adhered to any enemy military force, and he was not charged with doing this. Even by the Army’s own standard—that a mere charge of violation of the laws of war suffices to give a military tribunal jurisdiction—there was never such a charge made against Dr. Mudd. The best that can be said is that, sometime after the trial, the Army asserted that such a charge could have been brought. Finding jurisdiction on such a basis is arbitrary and capricious.

The parties agree on what the district court judge decided regarding essential facts. The district court found:

1. That Dr. Mudd was a citizen of the United States and of the non-secessionist state of Maryland;
2. That Dr. Mudd was not a member of either the Union or the Confederate forces;
3. That the civilian courts were open at the time of Dr. Mudd’s arrest;

In light of these findings, the case is on all fours with Ex parte Milligan, supra. There is no way to distinguish this case from Milligan without overruling it. Secretary Henry believed that certain language in Ex parte Quirin allowed another interpretation.

Ex parte Quirin involved certain World War II saboteurs who were assisted by civilians in the United States. These saboteurs landed from a submarine in 1942 "wearing German uniforms and provided with civilian clothes, ample funds in United States currency, and a variety of explosive materials. They donned civilian garb, buried their uniforms and explosives, went about within the country, and [later] were taken into custody." They were tried by military authorities and convicted. All filed motions for habeas corpus, which were denied. The Supreme Court concluded that they were enemy belligerents, and as such were subject to military trial for law of war violations: "Quirin and the others came as enemies.  But by putting off their German uniforms they ceased to be lawful combatants.  Had they remained a hostile detachment, in uniform, conducting themselves openly as troops, they would be captured and held as prisoners of war, and as prisoners would not have been subject to trial for their acts of war.  But as it was they had placed themselves squarely within paragraph 351 of our Rules of Land Warfare, and were treated exactly as is there provided.

In writing the opinion for the Court in Quirin, Chief Justice Stone hesitated over the issue of whether Haupt, one of the saboteurs and an American citizen, could be tried by a military commission for a violation of the law of war. "Stone soon satisfied himself that the alleged citizen among the saboteurs need not be given special consideration, because he had associated himself with German armed forces, thus becoming an enemy belligerent liable to be tried as such under the law of war.  One point troubled him, however.  'If Haupt is a citizen,' he asked [his law clerk, Bennett] Boskey, 'does that not make out a charge of treason as to him which the Constitution requires be tried by civil court?'  Further reflection led him to conclude that Haupt's real offense was entering the country as an unlawful belligerent for a hostile purpose--'which constitutes a violation of the law of war but may fall short of giving aid and comfort to the enemy.' 'The two offenses,' he said, 'are distinct and the same set of circumstances may support independent prosecutions for both.'

How is it possible to apply this reasoning of Quirin to Dr. Samuel Mudd? Dr. Mudd did not enter the country illegally—all parties agreed that he was a citizen of the United States and of the non-belligerent State of Mayrland, and that he acted only from his house. His case is precisely parallel to that of Cramer.

In Cramer v. United States, 325 U.S. 1 (1945), a companion case to Quirin, the defendant was convicted of treason for adhering to the enemy and giving them aid and comfort. He was a citizen of the United States who Werner Thiel, one of the saboteurs in the Quirin case after Thiel had landed on the New York shore. He was charged, tried, and convicted of treason in a civil court, and appealed his conviction for treason to the Supreme Court of the United States which reversed on the grounds that the facts proved by the government were insufficient to show that the defendant had given aid and comfort to the enemy.

The Cramer decision is significant because it demonstrates once again that a United States citizen, such as Cramer, should be tried in a federal district court for treason. His alleged co-defendant Thiel, an enemy alien, was properly tried by a military commission for a violation of the law of war. Cramer was not tried by a military commission for violating the laws of war, even though he associated with the one of the saboteurs and was in possession of $3,600 belonging to the saboteur. Thiel, on the other hand, was an enemy alien who therefore was not entitled to the protections of the United States Constitution. This is the touchstone of Cramer, and of Quirin. Enemy belligerents do not deserve and are not entitled to the protection of the Constitution, and cannot demand the rights in it. Thus, they may properly be tried by the military or any other body that cares to trouble with them. Enemy belligerents are, in every sense, Constitutional outcasts. To uphold the decision of Secretary Henry, one must be willing to say that Dr. Mudd, a citizen of the United States, did not deserve and cannot demand his rights under the Constitution.

In Haupt v. United States, 330 U.S. 631 (1947), the defendant similarly was charged with treason.  He was tried and convicted in federal district court, fined $10,000 and sentenced to life imprisonment.  Haupt was the father of one of the eight saboteurs in the Quirin case. The father was charged with treason for "[s]heltering his son, assisting him in getting a job, and in acquiring an automobile, all alleged to be with knowledge of the son's mission."  Id. at 633.  The father appealed his conviction to the Supreme Court of the United States and the Court affirmed the findings and sentence of the district court.

Again in Haupt, the defendant, a United States citizen, was charged with treason and tried in civilian court for giving aid and comfort to his son, one of the eight German saboteurs in the Quirin case.  Knowing his son's mission, he aided it by offering him shelter, getting him a job, and obtaining for him an automobile. The son, who secretly entered the United States to commit sabotage and thereby became an unlawful belligerent, was properly tried and convicted by a military commission for violating the law of war.

In United States v. Tomoya Kawakita, 96 F. Supp. 824 (S.D. Calif. 1950), aff'd, 190 F.2d 506 (9th Cir. 1951), aff'd, 343 U.S. 717 (1952), pet. for reh. denied, 344 U.S. 850 (1952), motion to modify sentence denied, 108 F. Supp. 627 (1952), the defendant was a United States citizen charged with committing eight acts of treason in Japan during World War II.  He was employed as a civilian interpreter in Japan during the war and was specifically charged with committing brutalities against American prisoners of war. He was tried in a federal district court for treason and was convicted and sentenced to death.

In his motion to reduce his death sentence, the defendant argued,

108 F. Supp. at 629.  In responding to the motion, the Court stated that defendant's "argument . . . overlooks entirely the fact that the status of the camp commander was that of a enemy alien owing no allegiance to the United States, while the status of the defendant was that of an American citizen owning full allegiance to this country." Id.

   In addition, the Court noted, the sentence imposed on the defendant,

 and it is for this offense that he was punished. Id.

These three cases, Tomoya Kawakita, Cramer, and Haupt, all involve conduct committed by the defendants when the United States was at war.  Each case involves conduct that was deemed by the government to be treasonous, that is, involving adherence to the enemy and giving aid and comfort to the enemy.  Each case also involved collusion between enemy aliens and American citizens.  In Tomoya Kawakita and Haupt, in particular, there is evidence of a high degree of complicity and mutuality of purpose in pursuing ends that were detrimental to the security and military interests of the United States.  Yet, in each case the American citizen was tried for treason in a civilian court, which was open and operating at the time, and the enemy alien was tried for a violation of the law of war by a military commission.  In each case too, the American citizen was afforded all the rights and protections guaranteed citizens under the Constitution, while the enemy alien, who is not entitled to such protections, received significantly fewer rights and protections.

These cases are essential to an understanding of Ex parte Quirin. They were contemporaneous to it, and demonstrate the Supreme Court’s understanding of the word "belligerent" as used in that case. The term means a person who adheres to the armed forces of the enemy, and who assists in waging war on the United States. It means nothing less. Another contemporaneous case, Duncan v. Kahonomoku, 327 U.S. 304, 310-11(1946), confirms this understanding.

In 1946, the Supreme Court had occasion to review the state of the law regarding authority of military commissions to try civilian citizens. Immediately following the bombing of Pearl Harbor, the Governor of Hawaii issued a proclamation suspending the privilege of habeas corpus and placing the Territory of Hawaii under martial law. Two civilians, White and Duncan, were arrested for criminal offenses (White for embezzling stock, and Duncan with brawling with armed marine sentries at the Navy Yard more than two years after the Pearl Harbor attack). Duncan was charged with violating a military order. He was therefore, tried by a military tribunal rather than the Territorial Court, although the general laws of Hawaii made assault a crime. Duncan at 310-11. They both questioned their convictions by way of habeas corpus.

Justice Black, for the Supreme Court, set out the issue facing the Court as follows:

Pursuant to the Governor's proclamation, the Commanding General immediately proclaimed himself Military Governor. On December 8, 1941, civil and criminal courts were forbidden to summon jurors and witnesses and to try cases. Military tribunals were established to

Id., p. 308

The Court noted that petitioners "had no connection with any organized resistance to the armed forces or the established government." Id. at 316. The Court stated,

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The record in this case is devoid of evidence that Dr. Mudd was a belligerent, that is, that he adhered to any military force. Quite the contrary, he was a civilian citizen of the United States and of his home state of Maryland. This case came before the district court on appeal from an agency decision. The history of that decision is instructive.

Dr. Richard Mudd, on behalf of his grandfather, brought a petition before the Army Board for the Correction of Military Records. That Board heard evidence and argument and determined, unanimously, that the conviction of Dr. Samuel Mudd by prior military authorities should be reversed, because, as it stated, the military authorities had no jurisdiction over him.

The Board’s decision was reversed by then Assistant Secretary Lister, in a determination later revised but still adverse to the Board. The case was brought to district court, which reversed the decision as arbitrary and capricious, and remanded it to the Army. The Army reconsidered the matter and determined that it had been right the first time, but now gave as a reason the Supreme Court’s decision in Quirin, raising for the first time the contention that Dr. Samuel Mudd was an enemy belligerent. It was this last decision that the district court upheld.

The procedural history is relevant for many reasons. Not the least of these reasons is that it provides one of the few available avenues of appellate review of the decision of a military tribunal. There is no doubt that such a decision is not subject to direct review, as a military commission is not a court of law. Ex parte Vallandigham, 1 Wall. 243. In many cases, habeas corpus may be suspended. In this case, however, the issue is whether the decision of Secretary Henry was arbitrary, capricious, or not otherwise in accord with law. Even if the decision were carefully considered, and carefully reasoned, but was not in accord with law, it should be reversed. As set forth earlier, this Court owes no deference whatsoever to the beliefs of the Secretary of the Army as to what the law may or may not be.

Assuming, then, that Quirin means that a civilian of the United States can be tried in a military tribunal for a law of war violation, the question remains whether Dr. Mudd was a belligerent. Quoting from Quirin, "Citizens [of the United States] who associate themselves with the military arm of the 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. Cf. Gates v. Goodloe, 101 U.S. 612, 615, 617-18.

There is nothing in the record that indicates that Dr. Mudd associated himself with the military arm of the Confederate government. There is no evidence in the record that, with or without its aid, guidance, or direction, that he entered the United States bent on hostile acts. Indeed, it is established by the record that he did none of these things. The same argument being attempted here was made by the government in Milligan. Milligan was a citizen of Indiana, never in the naval or military service of the United States or, since the commencement of the Rebellion, a resident of a rebel state. Milligan's counsel pointed out that "[t]herefore, it has been, and still is, wholly out of his power to have acquired belligerent rights, and to have placed himself in such a relation to the government as to enable him to violate the laws of war." Argument of Counsel, 71 U.S. Supreme Court Reports 284.

In response to this argument, Justice Davis wrote for the Supreme Court:

The answer, of course, was that the military tribunal did not have such a power.

. This case is not appropriate for summary affirmance. The motion should be denied for at least four reasons:

First, Article III, Section 3, Clauses 1 and 2, of the Constitution defines Treason, and it was with treasonous activities that Mudd was charged and convicted. The Constitution provides an exclusive remedy for treason, and does so precisely to protect citizens against the type of situation that resulted in Dr. Mudd’s trial. The Hunter Commission did not have jurisdiction.

Second, there is no evidence in the record to show that the government ever considered Dr. Mudd to be an enemy alien or an unlawful belligerent Like the defendants in Tomoya Kawakita, Cramer, and Haupt, he was a citizen of the United States and did not adhere to any military force. He was tried by a military commission solely because that commission had the military force to seize and try him.

Third, to allow some American citizens, like the defendants in Tomoya Kawakita, Cramer, and Haupt, to be tried in civilian court while permitting Dr. Mudd to be tried by a military commission for the same offense is a denial of equal protection. To expand the ruling in Ex parte Quirin to permit the military seizure and trial of citizens from their houses with no requirement that they be shown to be adherents of an enemy force is to tear Article III from the Constitution.

Fourth, the contention that the military, and only the military, has the jurisdiction to determine who should be tried for law of war violations, and that a mere assertion of violation of law of war is sufficient to grant jurisdiction to the military authorities, endangers the very fabric of the Constitution. The concept that the courts should give deference to the Secretary of the Army over the correct interpretation of Milligan and Quirin should not be permitted to stand in a judicial opinion.

The case deserves full briefing and argument before this Court.

Respectfully submitted,

Philip A. Gagner
D.C. Bar 376712
Shaughnessy, Volzer & Gagner, PC
1155 15^th St N.W. Suite 500
Washington D.C. 20005
(202) 371-2281

I hereby certify that a copy of this Motion has been sent by first class mail, postage prepaid, to Wyneva Johnson, Assistant United States Attorney, at her address:

Philip A. Gagner

Monday, August 27, 2001