The Supreme Court Goes to War: The Meaning and Implieationa of the Sazi Saboteur Case

• Author: by Professor Michal R. Belknap
• Pages: 03

In this shod adicle, Professor Belkmp dzscusses the deemon of the Cnzted States Supreme Court zn the case of Ex parte Quirin, 517 C.S. 1 (19111. That case held legal the tnal of etght Nazi saboteurs befoore a military commission, an eatraordznanj tnbunal whichmay be eonvenedonlyinwartlaw, a mzlttanj eommzsston has junsdiettonoflenses such a8 spying and aiding the enemy.

Professor Belknap prorzdes a shoi? account of the ecents giving rise to thzs World War I1 case. Ht mzews the legal and practical eonszderattons whzeh led the President and the Attormy General to choose tnal by milztanj eamnm~ssion ouer other f o m s of trial. The av,thoresammes the ciewpoints of the various justices then sitting an the Supreme Cowl

*The ~plnioni and eoncluaioni expreseed m thia amole me thobe of the auchhor and do not neceiranly represent the Nesi of The Judge Advocate Generda School the Deosnmenl of the Amy, or any other goxernmental agene)

"AeastanLprafessor of history. Univ~rslfsaf Georpa, Athens. Georgia, 1976 to piesenllnstrvetorandlaterassistanl prafeasar at Uniiersity ofTexheutenant, U 5. Army Military Intellieenee, 196749 B.A.

Angelea, 1865 MA., ~ruvernfyafRsconbm. 1967, Ph DJ D , University of Texas Law School. 1981

Proles~or Belknap LI the author of many iohalarl? anielei and book revieus on legal hietori and related topics HE book. "Cold War Political Juatne. The Bmich Aer. the Cornmumar Pan)-, and American Civil Liberties " was published m 1977 He 1% editor of anofherboakioonto bepubhrhed. 'AmencanPaliticalTrials TheRole ofPoliacved Justice in United State8 Hiarory "

MILITARY LAW' REVIEW' [VOL. 89

knouledging that the pressure of a total u.m earnnidnieni of notional etj"od compels adjustment of that balance, he eoneludea neuedheless that the trial could and shovld 1iai.e taken plaer in a civil COUd

1. INTRODUCTION

   On July 29, 1942, in the midst of their summer recess, the justices of the United States Supreme Court suddenly hastened back to 1Vashingron for a special seision. the first the Court had held in more than two decades. Although nearly three months had passed since the American victory at Midway, Rommel's forces continued their advance across North Airica, and German submarines went on smhng thouaands of tons of Allied shipping in the Atlantic

   The total war then raging around the globe vas very much on the minds of the judges as they seated themselves before a large audience. The ease that had brought them hurrying back to Karhingron involved eight enemy agents who had entered the United States on a sabotage mimion, and it pitted the warmaking powers of the national gaiernment against the apparent demands of important provisions of the Bill of Rights. The Caun's answers to the questions it posed would rereal a great deal about the capacity of the Constitution to safeguard civil liberties in a nation preoccupied with waeng total war.)

   The imponance of Er pa& Quzni,, as this ease came to be known, aas readily apparent at the time, and in the (ears since 1942 it has continued to excite the interest of constitutional scholars and papular writers alike. Them commentator8 hare iaiied, however, to fully comprehend either its meaning or its mplieatmns. To Eugene Raehlia, the author of a lively but undocumented account of the misadventures of the Nazi saboteurs, the Supreme Court hearing represents only one chapter of a drama that began in Germany and ended in the electnc chair at the District of Columbia jaL2 For Richard Polenberg, a achalari? historian

   h

   E. Rachhs, They Came 10 fill 253 (1861). Xeiv York Times July ZY. 1842, at 1. id 3

   E Rachhs. m p m note I. at 24147

   of the American domestic scene during World War 11, Quvin is significant mainly because it helped prevent public hysteria about Axis subversion.8

   Legal scholars and constitutional historians, on the other hand, have focused thelr attention on the interrelated questions of haw successful the judges were in maintaining the prerogatives af the civil courts against encroachment by military power and whether the legai system actually dispensed justice in this case or only added a meaningless procedural veneer to what was in reality summary punishment. In 1943, C p s Bemstein praised the Court's performance in that case for demonstrating that "OIVS is a government of justice and democratic principles."4 A cynical Edward S. Cornin, on the other hand, "characterized this opinion as little more than a ceremoniou detour to a predetermined goal,

   . . ."5 Over the years other scholars, such as Robert Cushman, Clinton Rossiter, Paul Murphy, and Alpheus Mason, have taken stands between these polar positions. But only Mason has recognized that what the case involved was not so much a conflict between military and judicial power as an effort on the part af the Supreme Court to define its own role in a total wars

   Both Mason and J. Woodford Howard are alert to this facet of Er pa& Quirin, but neither adequately explains the case's outcome nor satisfactorily elucidstes its implications. What the Supreme Court did was to baiance individual rights against the claim8 of a government waging total war, and to decide that the latter u'ere more important. Rather than capitulating to the power of the sword, the justices enlisted in the national military effort, embracing attitudes which would render constitutionally guaranteed civil liberties vulnerable throughout the rest of World War XI and in the Cold War era which followed.'* R. Polenberg. War and Society 4445 (19121d C Bernstem, The Sobotew Tnol A Car Htslary, 11 Geo RaJh L Rev 131 11943). E. C o r n , Total War and Ihe Conitrfution 118 (1947).

   Cushmw, Er Paiie plann Et Ai -Tk rXo2r Saboteur Case, 26 Cornel1 L 9 64 11942) (hereindm cited a Cushman, Ei Paiic Quinn El At 1, Cuhman. The Case qrthe Sa*% Snbateura. 35 Am Pohticll Sci Rev 1082 (19421: C. Rossiter, The Supreme Court and the ComnnderinChiefllbl6 119611,P Murphy, The Constirutionin CririiTimeb 191C1959.

   ' at 245 (1972). A Maan. Harlan €like Stone 665. 611 (1956)

   'Maon, dvpm note 6, at 666, 671. J W. Howard, 11~ Justee Murph) 3W 119581

   11. FACTS OF THE CASE

   The Quinn case began on the foggy night of June 12. 1942 when a German submarine deposited at Amagansett, Long Island, four men who had previously lived in the United States. Recent graduates of a sabotage school near Brandenburg, they had returned to this country to destroy key transportation facilities and cripple its aluminum industry. Several days after their landing, four ather men assigned to the same project slipped ashore at Ponte Verde Beach, near Jacksonville, Florida. The leaders of the two teams, George John Daach and Edward John Kerlmg, were to rendezvous in Cincinnati on July 4, and, sometime thereafter, their carers established, the saboteurs would begin their deadly

   Neither the Cincinnati meeting nor the planned sabotage ever took place. While still on the beach, the Long Island team w-as discovered by a Coast Guardsman, and although the four saboteurs managed to break contact with him and make their way to New York City, Dasch apparently concluded that their eventual capture wab inevitable. He and Ernest Peter Burger decided to save themselves by betra3ing the others. After telephoning the FBI, Dasch traveled to Washington where he made a full confession to the Bureau. Agents in New York wrested Burger and the rest of the Long Island team, as well as two members of the Florida group, who had made their way north from Jacksonville. The Bureau located Hans Haupt when he walked into its Chicago office in a bold attempt to clear himself of draft evasion charges, and from him it learned the whereabouts af the fowth member of the Florida team. By June 21 all eight of the would-be saboteurs were in custody.@

   When FBI Director J. Edgar Hoover announced their capture that evening, Americans, starved for good news from the war, reacted as if their country had just won a major military Aiong with triumphant cheering there arose cries for the blood of the saboteura, Raymond

   L Raehhs, mppm note 1. 81 b9. 4M6. and 67.113s Id. at 117.20 and ISMS Although Daieh insilted he had decided to betra) the operation wen before the saboteurs IM Germany. his ~ ~ f i o n i prior to the encounter uiih the Coart Guardernan indicate othenmse That inerdenf proiides the most plausible explsnafion for u hat seems to have been 8 change af heart

   '"New York Tmes. June 23, 1942. at 1. (01 B andJuli 16, 1942, at 13. e d

   4, Bernstern.

   8apm note 4, 81 13i: Raehbs. supm note 1, at lhbi0 62

   19801 NAZI SABOTEUR CASES

   Moley of .Vewsiceek insisting, "We ought to meet this threat with the most swift and most ruthless punishment which the law permits."" President Franklin D. Raosevelt agreed completely. "Offenses such as there are probably more serious than any offense m criminal law," he wrote on June 30 in a "Secret & Confidential" memorandum to Attorney General Francis Biddle. "The death penalty is called for by usage and by the extreme gravity of the war aim and the very existence of our American government." Eschewing the presumption of innocence fundamental to the Anglo-American system of criminal law, the President expressed the opinion that the arrested men were "just as guilty as it 1s possible to be." Nor did he entertain any doubts abaut how to deal 6 t h them. They should, he told Biddle, "be tried by court martial. . .

   111. SELECTIOB OF A TRIBUBAL A. MILITARY VERSUS CIVIL TRIAL

   The President's preference for a military trial Ias understandable, for,

   ahauld a civil court try the accused men, six ofthem could not he executed, and obtaining death penalties against the other two would be extremely difficult. The obvious charge was attempted sabotage, but that offense canied a maximum penalty of thirty Fears in prison. Burger and Haupt could be prosecuted for the capital crime of treason. because while living in this cauntv, they had become United States citizens. But the Constitution itself provides that a...