In My Darker Moments . . .

In my darker moments, I sometimes ponder what the contours of the civilian court-access right extending to citizens supported by Justice Scalia in Hamdi and, perhaps also by Professor XXX, might look like. In World War II, the United States detained hundreds of thousands of Axis prisoners of war. A great many were guilty of war crimes and a fair number were tried for such crimes. During the war, these prisoners were duty bound to escape and to tie up the resources of the United States and its allies. Would such prisoners have hesitated to assert—even entirely falsely—that they were each and all United States citizens by birth, transported to Axis nations as children by their parents before the war, drafted without their consent, and forced to commit crimes against their will? Would not their affidavits in support of one another support such claims? And where purported claims to United States citizenship are supported, based merely on oath and affirmation, should such prisoners get a free ticket to the civilian courthouse door? What kept Axis prisoners from making such false claims was not a sense of martial honor common to warring nations, but the belief that their enemies were hard men, that their opponents were serious about victory and understood the consequences of defeat, and that the legal system incarcerating them was not run by madmen in judicial garb. Whatever else Ex parte Quirin was, it was a victory for common sense—during war time.

Seth Barrett Tillman, In My Darker Moments . . ., New Reform Club (Oct. 8, 2018, 3:47 AM), https://reformclub.blogspot.com/2018/10/in-my-darker-moments.html.