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Professor David J. Danelski has recently published an excellent
account and analysis of the trial by military commission
of the eight German saboteurs who landed on the beaches of
Long Island and Florida during World War II, and of Ex parte
Quirin, in which the Supreme Court, after two days of oral argument
at an unusual special session called by Chief Justice
Stone, upheld the constitutionality of the military commission's
jurisdiction. Like other commentators, Professor Danelski focuses primarily on the central issue in Ex parte Quirin-the constitutional
power of a military commission to try persons apprehended
in the United States when the federal and state courts
were open and functioning. Not surprisingly, the commentators,
including Professor Danelski, have given little attention to two
threshold issues that were the subject of intense inquiry during
the oral argument but then faded from the forensic scene.

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