It took District Judge James W. Morris only a few minutes to reject the petitions, citing the presidential proclamation of July 2 that denied “subjects, citizens or residents of a nation at war with the United States” the right to be heard in regular U.S. courts. The stage was now set for a landmark Supreme Court hearing. The case would become known as Ex parte Quirin, after Richard Quirin, one of the seven petitioners.
WHATEVER ITS constitutional significance, the extraordinary Supreme Court session was Washington’s event of the season. Stimson, the crotchety secretary of war, was taken aback to be told by Felix Frankfurter that the Court was “being deluged with applications for entrance” from serving army officers, among other prominent Washingtonians.9 Determined to prevent “a public show,” he ordered the army chief of staff, George Marshall, to station a man at the door to prevent the entry of all uniformed officers, other than those directly connected with the trial.
The following morning, long lines of would-be spectators snaked around the Supreme Court, an imposing building opposite the Capitol completed just seven years earlier on the site of a federal prison. The legal gladiators ascended the gleaming white marble steps of the west portico, beneath a frieze depicting “Authority” and “Liberty” and the inscription “EQUAL JUSTICE UNDER THE LAW.” For the most part, they arrived two by two, pausing for photographers in the sweltering summer sun. The two defense counsel, Royall and Dowell, both in loosely fitting colonels’ uniforms, one very tall, the other short. The two government lawyers, Biddle in his trademark white suit, his assistant Oscar Cox in owlish round glasses. The nation’s two top G-men, J. Edgar Hoover and his ever-present companion Clyde Tolson, in snap-brim hats, sharp suits, and crisp pocket handkerchiefs, Tolson precisely one step behind his boss. Only the saboteurs themselves were missing: the Supreme Court hearing would take place without them.
Inside the courthouse, Stone walked around the table in the wood-paneled conference room, shaking the hands of his brethren, a symbolic reminder of the court’s unity in diversity. Eight justices were present. The ninth, William O. Douglas, was still on his way back from Oregon. Word had already reached the justices via Biddle that FDR planned to execute the saboteurs, whatever the Supreme Court decided.
“That would be a dreadful thing,” said the chief justice. 10
Despite the outward appearance of harmony, Stone’s court was already known for its acrimonious divisions. The chief justice referred to his colleagues as “my wild horses.”11 The most strong-willed of them all was Frankfurter, a former professor of law at Harvard. Short in stature, pugnacious in manner, at once brilliant and arrogant, Frankfurter was contemptuous of anyone who did not share his opinions. He faulted Stone for an excessive preoccupation with legal formalities. He referred to the trio of liberal justices—Black, Douglas, and Frank Murphy—as “the Axis.”12 A European-born Jew, Frankfurter believed that the United States was fighting “a war to save civilization itself,” and treated those who disagreed with him about the need for strong executive power as not only wrong-headed but potentially treasonous.13 A dazzling conversationalist and correspondent, Frankfurter was on intimate terms with many members of the government, beginning with Roosevelt. Earlier in his career, he had served on Stimson’s staff as U.S. attorney for the Southern District of New York, and they had remained close friends.
At conference, Frankfurter quickly moved to disqualify Murphy from any role in the hearing. A few weeks before, Murphy had accepted an army commission as a lieutenant colonel, and had attended a military training camp. A photograph had appeared on the front page of the New York Times of the justice in army uniform, cradling a submachine gun. Frankfurter argued that this created a clear conflict of interest, since the army was a party to the saboteur case. Murphy agreed to step aside. What Frankfurter failed to tell his colleagues was that he had himself talked about the case with his friend the secretary of war, and had even urged Stimson to set up a military tribunal “entirely composed of soldiers.”14 Had this been known at the time, it likely would have been grounds for Frankfurter’s own disqualification from the Supreme Court hearing, in the opinion of many legal observers.15
At noon precisely, the marshal of the court shouted the traditional announcement for a new session: “Oyez, oyez, oyez”—Hear ye, hear ye, hear ye. The heavy purple drapes of the court’s main chamber parted, and the black-robed justices settled into their nail-studded leather chairs, dwarfed by the huge white marble columns behind them. When the building was first inaugurated, one justice complained that he and his colleagues would look like “nine black cockroaches in the Temple of Karnak.” It was an apt description, except that only seven “black cockroaches” were present on this occasion. An unhappy Murphy sat behind the curtain as an observer, and Douglas would not arrive until the following day.
Royall scarcely had time to approach the wooden lectern in front of the chief justice and introduce himself as counsel for the saboteurs when he was interrupted by his old Harvard law professor. Justice Frankfurter noted that writs for habeas corpus normally went from the district court to an ordinary appeals court, not the highest court in the land. Why should the Supreme Court even have jurisdiction in this case? Because of its urgency, replied Royall. Under the procedure laid down in the presidential proclamation, a verdict could be delivered and a sentence carried out without any kind of appeal. “A man has a right to an appeal,” he said. Frankfurter seemed unconvinced, but Biddle supported Royall, saying the government did not object to the Supreme Court considering the case.
The preliminaries out of the way, Royall launched into his main argument, which was that Roosevelt’s proclamation establishing a military commission was unconstitutional. He conceded that the saboteurs had been transported to America in a German U-boat, but argued that the government had failed to show sufficient reason to try them by military tribunal. The Articles of War reserved two crimes for military jurisdiction: espionage and “assisting the enemy” in an area of combat operations. Neither charge applied to his clients.
“They constituted, I suppose, an invading force?” 16
This from Justice Robert Jackson, who would later serve as the chief U.S. prosecutor of Nazi war crimes at Nuremberg. His words echoed around the cavernous chamber, bouncing off the marble floors. Spectators at the back of the hall had to lean forward to hear what the justices and opposing counsel were saying through the faulty acoustics.
“No, sir,” replied Royall. He noted that several defendants claimed that they had only pretended to go along with the sabotage plan in order to escape from Germany and return to America. Furthermore, Long Island and Florida, where the saboteurs originally landed, could hardly be described as areas of combat operations.
Justice James Byrnes took Royall’s argument and reduced it to absurdity: “Your contention is that if the Führer and seven generals of the Army of the Reich should land from a submarine on the banks of the Potomac, having discarded their uniforms, they are entitled to every right you have discussed in the application for a writ of habeas corpus?”
“My argument would have to carry that fact, and does,” Royall acknowledged. Under Milligan, unless an enemy soldier was detained within a theater of combat operations, he was entitled to the same legal rights as anyone else simply because he was “a person in America.”
But surely, Frankfurter insisted, the enemy determined “the theater of operations” through his acts of aggression. “If a parachutist should come into this building, or near this building, would this not be a theater of operations?”
Royall conceded that this was so. His clients, however, arrived “unarmed.” That is to say, they came with explosives, but “they did not engage in any actual combat operations.”
“I am glad to know what ‘unarmed’ is,” rejoined Frankfurter, as the chamber erupted in laughter.17
UNDER NORMAL circumstances, it is impossible to tell what the justices of the Supreme Court are thinking as they sit on the bench, weighing the argumen
ts of opposing counsel. A few months later, however, Frankfurter would offer a running commentary of his views “on the issues of the saboteur case ever since my mind came to rest upon them.” He did so in the form of a fictional dialogue between himself and the saboteurs, which he circulated to his fellow justices. Entitled “F.F.’s Soliloquy,” it is one of the most unusual documents in Supreme Court history.18
Saboteurs: Your Honor, we are here to get a writ of habeas corpus from you.
F.F.: What entitles you to it?
Saboteurs: We are being tried by a Military Commission set up by the President although we were arrested in places where, and at a time when, the civil courts were open and functioning with full authority and before which, therefore, under the Constitution of the United States we were entitled to be tried with all the safeguards for criminal prosecutions in the federal courts . . . F.F.: You damned scoundrels have a helluvacheek to ask for a writ that would take you out of the hands of the Military Commission and give you the right to be tried, if at all, in a federal district court. You are just low-down, ordinary, enemy spies who, as enemy soldiers, have invaded our country and therefore could immediately have been shot by the military when caught in the act of invasion. Instead you were humanely ordered to be tried by a military tribunal convoked by the Commander-in-Chief himself, and the verdict of that tribunal is returnable to the Commander-in-Chief himself to be acted upon by himself. To utilize a military commission to establish your guilt or innocence was plainly within the authority of the Commander-in-Chief.
Frankfurter was equally unimpressed by Royall’s secondary arguments. The defense maintained that even if the president had a right to set up a military commission to try the saboteurs, he had failed to abide by the Manual for Courts-Martial. Article 46 of the manual provided for a review of tribunal proceedings by the judge advocate general. Article 501⁄2 stated that such a review must be completed before the trial record and sentence were sent to the president for execution. The president’s proclamation, Royall argued, short-circuited these established procedures. Frankfurter, by contrast, believed that the courts-martial manual did not apply to enemy agents. All the saboteurs were achieving by their appeal to the Supreme Court was endless legal trouble:
You’ve done enough mischief already without leaving the seeds of a bitter conflict involving the President, the courts and Congress after your bodies will be rotting in lime. It is a wise requirement of courts not to get into needless rows with the other branches of government by talking about things that need not be talked about if a case can be disposed of with intellectual self-respect on grounds that do not raise such rows. I therefore do not propose to be seduced into inquiring what powers the President has or has not got, what limits the Congress may or may not put upon the Commander-in-Chief in time of war, when, as a matter of fact, the ground on which you claim to stand— namely, the proper construction of these Articles of War—exists only in your foolish fancy. That disposes of you scoundrels.
All in all, Frankfurter concluded, such abstract constitutional debates were a waste of time and national energy, a pastime better postponed “until peacetime.” For the moment, however, he kept these thoughts to himself.
“MAY IT please the Court,” Biddle began, when it was his turn to address the justices. “The United States and the German Reich are now at war. That seems to be the essential fact on which this case turns and to which all of our arguments will be addressed.”
Not only was this war, the attorney general contended, it was “total war.” It was impossible to compare the “East Coast of today” with the “Indiana of Milligan in 1864.” Milligan was arrested far from the front lines. Modern war was “fought on the total front, on the battlefields of joined armies, on the battlefields of production, and on the battlefields of transportation and morale, by bombing, the sinking of ships, sabotage, spying, and propaganda.” It was impossible to distinguish one battlefield from another. “We know that the two submarines were able to cross our lines and land these men on our patrolled shores. We know that our whole East Coast is a theater of operations in substantially the same sense as North Atlantic or the British Isles.”
Biddle had made a valid point. The Articles of War, which governed military commissions, were written in the eighteenth century at the time of the Revolutionary War. They were designed to deal with the type of situation that arose when Major André was discovered “lurking” behind American lines close to West Point after contacting Benedict Arnold. In modern times, however, unlawful belligerents could turn up anywhere. They would not restrict themselves to “lurking or acting as a spy in or about . . . the fortifications, posts, quarters, or encampments of the armies of the United States,” in the language of the Articles of War.
On the other hand, as Royall pointed out, the government’s definition of “total war” was so elastic that it could be stretched to cover virtually any crime committed in wartime that might conceivably “aid the enemy.” If the battlefield was everywhere, then military tribunals could also be established everywhere. A worker who went on strike in a defense plant could be hauled before a military commission on the grounds that he had helped the enemy on “the battlefield of production.” There had to be some limit on the “total war” theory, Royall argued, “or we have very few constitutional guarantees left when we go to war.”
At first, the justices listened respectfully to the attorney general as he rebutted Royall’s arguments, sometimes saying “war of law” when he meant “law of war.”19 But soon they were challenging him to define where he drew the line between crimes that could and could not be tried by military commission.
Justice Black wanted to know what would happen if a U.S. citizen was “picked up on the street” several months after landing in the country as part of a group of enemy saboteurs. Would he be tried by military tribunal? “That is Haupt’s case perfectly,” Biddle replied. “Haupt landed, left his stuff buried in the sand, got away, and was arrested in the internal part of the country.” In such a case, he had no problem arguing that the military should have jurisdiction.
“Suppose,” said Black, “that a man had been accused of trying to interfere with work in a defense plant, and it was said that in some way he had received instructions from a foreign country. Under the [president’s] order, would he be tried by a court-martial?”
“It is right on the edge,” the attorney general replied.
“Where is the line?” asked Justice Jackson.
Biddle was reluctant to be precise. But he was sure of one thing, he told the justices. The line had to be drawn to include groups of saboteurs who invaded “the coast of the United States,” evading patrols that were specifically on the lookout for enemy submarines and invaders. Furthermore, these particular saboteurs had taken off their uniforms, and were therefore not entitled to the privileges traditionally conferred on prisoners of war.
“The mere absence of uniforms makes a difference?” asked Justice Stanley Reed.
“All the difference in the world.”
The following day, Thursday, Biddle turned his attention to the Milligan case, which he described as “bad law” because it interfered with the responsibility of the commander in chief to defend the country. It was “preposterous” to argue that the president could not take “proper steps to repel and capture” invaders. But even if the justices were reluctant to completely overturn Milligan, Biddle thought there were still grounds for carving out an exception for the saboteurs. Milligan was the citizen of a state that had kept out of the Civil War fighting. The saboteurs were enemy invaders.
In his rebuttal, Royall pointed out that the saboteurs had not blown up anything, and had never sought to retrieve the explosives they buried when they first came ashore. He continued to insist that the saboteurs had not passed through a “zone of combat operations.”
“I don’t quite get your distinction,” interrupted Justice Black. “What about the planes that fly over foreign countries and drop bombs and destroy
property far removed from the scene of battle?”
“If it was a military plane, that is generally accepted as a means of fighting or of combat.”
“A submarine is, too.”
“A submarine is, but these submarines in this case did not do anything but transport.”
Winding up for the plaintiffs, after nine hours of debate spread over two days, Royall agreed with Biddle that the United States was fighting a war for its very survival. He then paraphrased the majestic words of Justice Davis in Ex parte Milligan. “The Constitution is not made for peace alone, it is made for war as well as peace. It is not merely for fair weather. The real test of its power and authority, the real test of its strength to protect the minority, arises only when it has to be construed in times of stress.”
“The Court stands adjourned until twelve noon tomorrow,” announced the chief justice, rapping his gavel on the table in front of him.
“MEMBERS OF the Commission, this has been a most unusual case,” declared Judge Advocate General Myron Cramer on the morning of July 31, when the military tribunal reconvened to hear closing arguments. As the army’s senior law enforcement officer, Cramer was assisting Biddle with the prosecution. The case was unusual, Cramer said, because it was the first time a military commission had met in seventy-seven years. It was even more unusual because the accused all claimed to be innocent of the charges against them, while admitting to doing all the things the prosecution said they did.
“They claim that instead of being invaders, they are refugees.” The judge advocate general injected a note of sarcasm into the word “refugees.” Such a claim was preposterous, he said. Not only were they trained saboteurs, they had passed through a theater of naval operations and “came and landed in the darkness of night on our shores.” Had the beaches of Long Island and Florida been better protected, the U.S. Army would have had every right to shoot the prisoners down “as an invading force.” For these reasons, Cramer urged the commission to sentence all the defendants to death.