GRAHAM: Can you show me in a case in American jurisprudence where an enemy prisoner held by our military was allowed to bring a lawsuit against our own military regarding their detention?
ALITO: I am not aware of such a case.GRAHAM: Is there a constitutional right for a foreign, noncitizen enemy prisoner to have access to our courts to sue regarding their condition of the confinement under our Constitution?
ALITO: Well, I'm not aware of a precedent that addresses the issue.GRAHAM: Do you know of any case where an enemy prisoner of war brought a habeas petition in World War II objecting to be their confinement to our federal judiciary?
ALITO: There may have been a lower court case. I'm trying to remember the exact status of the individual.
GRAHAM: Let me help you. There were two cases. One of them involved six saboteurs, the in re Quirin case. Would you agree with me that that case stood for the proposition that in a time of war or declared hostilities an illegal combatant, even though they may be an American citizen, the proper forum for them to be tried in is a military tribunal and they're not entitled to a jury trial as an American citizen in a non-wartime environment?
ALITO: Well, those were a number of German saboteurs who landed by submarine in the United States. And they were taken into custody. And they were tried before a military tribunal.
And the case went up to the Supreme Court. The Supreme Court sustained their being tried before a military tribunal. At least one of them claimed to be an American citizen. And most of them, I think all but one or two, actually were executed.
GRAHAM: And our Supreme Court said that is the proper forum during a war-time environment to try people who were engaged in a legal combat activities against our country. Is that correct?
ALITO: They sustained what was done under the circumstances.
GRAHAM: That would be a precedent then, wouldn't it?
ALITO: It is a precedent. Yes.
GRAHAM: OK.
There was a case involving six Germans, soldiers, captured in Japan and transferred to Germany, and they brought a habeas petition to be released in the -- I can't remember the ...
ALITO: Eisentrager.
GRAHAM: You know it. Tell me what the court decided there.
ALITO: They were, as I recall, they were Germans who were found in China...
GRAHAM: China. You're right
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