Nazi Saboteurs on Trial: A Military Tribunal and American Law.

• Author: Tobias, Carl
• Position: Book review

LOUIS FISHER, NAZI SABOTEURS ON TRIAL: A MILITARY TRIBUNAL AND AMERICAN LAW (UNIV. PRESS OF KAN. 2003) 193 PP.

Recent developments in the "war on terrorism" have accorded Ex parte Quirin, (1) a World War II Era opinion, flesh relevance. Quirin held that President Franklin D. Roosevelt (FDR) had the authority to establish a military commission, which subsequently tried, found guilty, and suggested punishment for eight Nazi saboteurs immediately after the Supreme Court rejected their petitions for writs of habeas corpus. Quirin languished as a wartime artifact until November 2001, when President George W. Bush invoked the ruling to create military tribunals, as well as to purportedly abrogate federal court jurisdiction and deny federal court access to those prosecuted or held for suspected terrorist behavior. The Supreme Court recently invalidated President Bush's action. (2) High-echelon administration officials have concomitantly used Quirin to support related measures in the "war on terrorism" and to litigate terrorism cases. The new events have afforded Quirin much salience, provoking great interest in, and considerable reliance on, the opinion among federal lawmakers, judges, and scholars.

Thus, Louis Fisher's new work, Nazi Saboteurs on Trial: A Military Tribunal and American Law (3) (Nazi Saboteurs), and his valuable contribution to illuminating Quirin merit scrutiny. In this Review, I first descriptively assess Nazi Saboteurs. The Review then treats the monograph's numerous beneficial features and ascertains that it enhances understanding of the important decision in Quirin. I conclude with several recommendations for future analysis of Quirin's impact.

1. DESCRIPTIVE ANALYSIS

   Fisher first evaluates the mission Germany assembled to conduct sabotage in the United States once the U.S. declared war. (4) He finds that the eight saboteurs were ordinary persons, (5) who attended a training camp (6) and landed on American soil with explosives in mid-June of 1942. (7) Fisher analyzes the saboteurs' mistakes, (8) such as tendering a bribe to a Coast Guard official who witnessed their arrival. (9) Two quickly concluded that defecting might save them, and all eight were in custody by June 27. (10)

   He then surveys the commission FDR and Attorney General Francis Biddle devised, mainly to facilitate capital punishment. (11) On July 2, an Executive Order instituted the tribunal, named its members, prosecutors, and defense lawyers, and delineated its strictures. (12) On the same day, a Presidential Proclamation ostensibly vitiated federal court jurisdiction. (13) The approach of the tribunal differed from a court martial: it tolerated lenient evidentiary standards, allowed conviction and proposed sentences on a two-thirds vote, and named Biddle the prosecutor and FDR the final decision-maker. (14) The commission invented rules as needed over the three-week secret trial. (15) When the defense said it might file habeas corpus petitions, (16) Biddle agreed to seek Supreme Court review, which was granted. (17) After the Supreme Court denied relief on July 31, (18) the tribunal promptly concluded, suggested that all the saboteurs be executed, and sent the 3000 page transcript to FDR. (19) Within days, FDR imposed the death penalty on six of the offenders and long sentences on the two defectors. (20)

   Fisher turns to the Court's proceeding. (21) He assesses the briefs, the nine hour oral arguments, and the terse per curiam order (22) that rejected the petitions and stated that an opinion would be issued later. (23) Chief Justice Harlan Fiske Stone could find minimal justification for the order, (24) but urged that the Court resolve unclear questions against the saboteurs, lest it be criticized for not deciding them prior to the executions. (25) When no agreement materialized, Justice Robert Jackson penned a document that resembled a concurrence. Jackson's piece jeopardized the unanimity that some members thought was essential, (26) and led Justice Felix Frankfurter to write "F.F.'s Soliloquy." (27) Frankfurter's imaginary dialogue reviled the saboteurs for litigating and provoking an interbranch confrontation, while its patriotic appeal implored the brethren to eschew abstract theorizing in wartime. (28) Consensus galvanized when Jackson and the other Justices joined Stone three months after the order was issued. (29) The opinion was very narrow. The Court exercised jurisdiction and rejected the petitioners' Fifth and Sixth Amendment claims on the merits. (30) It labeled the eight saboteurs unlawful combatants, making them offenders against the laws of war subject to military tribunal trial and punishment. (31) However, although the Court assumed that there were offenses against the laws of war that are "constitutionally triable only by jury," an idea articulated by Ex parte Milligan, (32) in this case, the Court found that the petitioners were charged with offenses that were not required to be tried by jury. (33) The defendants contended that the Court's holding in Milligan made the laws inapplicable "to citizens in states which have upheld" the government's authority and where the federal courts are open. (34) Yet Stone limited that ruling to its facts, as Milligan "was not an enemy belligerent." (35) The Justices found the commission's proceeding valid, concluded that the Articles of War did not "afford any basis for issuing the writ," and denied the habeas writs, but the members disagreed on the rationale. (36)

   Fisher "rethinks" the tribunal's validity and efficacy. (37) First, he describes Quirin's mixed evaluations at the time. (38) He asserts that FDR learned from the 1942 initiative to use the military system because civilians did not prosecute later saboteurs. (39) Fisher addresses wartime judicial deference to military and executive authorities by canvassing martial law in Hawaii, Japanese-Americans' internment, and the commission trial of General Yamashita. (40) He analyzes Supreme Court decisions issued after the war (41) and considers whether their balance of national security and civil liberties portended Milligan's revitalization. (42) Fisher offers views in favor of and against the Bush tribunals, which he compares to the 1942 effort. (43)

   The author concludes with helpful insights, mostly disparaging FDR's endeavor and Quirin as precedents. (44) He believes that the approaches of the 1942 commission and Court were flawed, and measures which better honor national values existed then and are available now. (45) Fisher claims tribunal use accorded the Executive excessive power because FDR named the members, restricted legislative and judicial involvement, and was the ultimate arbiter. (46) He also considers these attributes to be major faults of the tribunal: (1) that no president could have...