Military tribunals and legal culture: what a difference sixty years makes.

• Author: Goldsmith, Jack L.

President Bush's Military Order of November 13, 2001 established a legal framework to enable military commissions to try terrorists associated with the attacks of September 11, 2001 on Washington, DC, and New York City. (1) This Military Order was greeted with impassioned criticism in the press, the legal academy, and Congress. But it hardly lacked precedent. Sixty years earlier, in the midst of World War II, President Franklin Delano Roosevelt (FDR) established a Military Commission to try eight Nazi agents who had covertly entered the United States to commit acts of sabotage and terrorism. Although the Nazis failed in their mission, their aims were similar to those of the 9/11 terrorists. And yet Roosevelt's creation of the Commission, and the subsequent secret trial of the Nazi saboteurs, received widespread praise from the same institutions that protested Bush's action.

Our purpose here is not to investigate, except in passing, issues of law and policy. (2) We instead explore three other questions: What explains the dramatically different reactions? What lessons do the different reactions offer about changes, over time, in the legal culture and in culture in general? What lessons do they offer about the evolution of protections for civil liberties in general and during wartime in particular?

The most tempting, and common, explanation for the different reactions is that there is a significant difference in law--that President Roosevelt's Order stands on much firmer legal ground than President Bush's Order. We show that this and related explanations are weak. The different reactions are instead best explained in terms of two large differences between the United States of 1942 and the United States of 2001. In 1942, the nation perceived a far greater threat to its own survival; for this reason Americans were far less solicitous of the interests of defendants thought to have participated in a war effort against the United States. But this explanation is inadequate by itself. It must be supplemented with an understanding of the large-scale, post-1960s shift in American attitudes, involving decreased trust of executive and military authority, and a strengthened commitment to individual rights in the legal system and broader culture. Our general claim is that with respect to these issues, the legal culture is fundamentally different from what it was before, so much so that many previous practices are barely recognizable. We use the different reactions to the Bush and Roosevelt Military Orders as a way of obtaining a window on this shift.

After making out these claims, we conclude with some general reflections on the evolution of civil liberties protections during wartime. In particular, we identify a mechanism behind the trend toward greater protection for civil liberties during wartime, namely: A judgment, in hindsight, that past civil liberty intrusions were unnecessary or excessive. We also suggest that this trend is, in a way, an accident of America's distinctive history.

1. THE NAZI SABOTEURS AND THE REACTION TO ROOSEVELT'S ORDER

   On June 12, 1942, six months after Hitler declared war against the United States, four Nazi agents who had traveled by submarine from France landed in darkness on a beach in Long Island, New York. (3) A few days later, four more Nazi agents landed on the north Atlantic coast of Florida. The eight men had all lived in America before returning to Germany after Hitler rose to power; two of them, Herbert Haupt and Ernest Burger, were naturalized American citizens. (4) The saboteurs' mission was the brainchild of Hitler himself, who wanted to cripple U.S. military production capacities and demoralize the American civilian population. Their task was to blow up aluminum plants, railroad lines, canal locks, hydroelectric plants, and bridges. They also had plans for "nuisance bombings" of railroad terminals and Jewish-owned department stores. (5)

   Soon after their arrival in the United States, two of the saboteurs, Dasch and Burger, decided to betray their mission to the U.S. government. It is unclear why they turned. Most historians believe they were motivated by fear of betrayal by the other saboteurs, or by fear of detection by U.S. officials. Whatever their reason, Dasch and Burger telephoned the FBI office in New York to announce their plot. When they were dismissed as cranks, Dasch traveled to Washington, where FBI agents took his story more seriously. The FBI interviewed Dasch for five days about the saboteurs' plans, and then rounded up his seven accomplices.

   FBI Director J. Edgar Hoover announced the capture of the eight Nazi Saboteurs on June 27, 1942. Hoover insinuated that the arrests resulted from the FBI's infiltration of the Nazi system. But he revealed little actual information beyond the names of those involved, how they landed, the weapons they possessed, and their sabotage aims. Nonetheless, the nation reacted to the news with enormous joy. "The little that [Hoover] told was enough to make headlines of a size that had hitherto been reserved for the war's major battles.... With no information about how the success had been achieved, the public took the news as undeniable proof that Nazi fiendishness was no match for American G-men." (6)

   The newspaper reports of the saboteurs' capture insisted that the eight men would face the death penalty. Within the government, however, there was considerable uncertainty about how to prosecute and punish the saboteurs. One complicating factor was that the laws applicable in civilian trials did not permit the death penalty for the non-U.S. citizen defendants. Another was a concern that Article III of the Constitution required the government to try the American citizens for treason.

   "If there was doubt in the Justice Department, there was none among politicians, the press and most of the public." (7) Almost everyone seemed to call for the saboteurs' execution--the sooner the better. The Washington Post reported that "[d]emands immediately arose among members of Congress for swift justice to the saboteurs--for the death penalty if the law permits it." (8) The general public favored death for the saboteurs by a 10-1 margin. (9) A Newsweek essay entitled Death for the Saboteurs argued that "[w]e ought to meet this threat with the most swift and the most ruthless punishment which the law permits." (10) "Life Magazine headlined its story of the capture: The Eight Nazi Saboteurs Should Be Put To Death." (11)

   President Roosevelt agreed. "Offenses such as ... these are probably more serious than any offense in criminal law," he wrote to Attorney General Biddle on June 30. "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. [The saboteurs] should be tried by court martial." (12) Biddle concurred that a military commission is preferable because of greater flexibility, its traditional use in cases of this character and its clear power to impose the death penalty. (13)

   On July 2, Roosevelt issued two proclamations that together established a Military Commission to try the eight saboteurs. One proclamation established the jurisdiction of the Military Commission and purported to preclude judicial review of its decisions. (14) The other named the eight defendants as well as the judges, prosecutors, and defense counsel. It also outlined the structure of the Commission in very general terms. (15)

   Roosevelt's announcement that a Military Commission would try the saboteurs "met with general satisfaction in Washington, as it will throughout the country," wrote Lewis Wood, the New York Times Washington correspondent. (16) "The Presidential action calmed the fears of many who realized the delays and technicalities incident to civil trials." (17) A few days later, Wood wrote: "Expectation ... that the Administration would seek the death penalty for the Hitler spies before the military commission chosen by the President sounded a heartening note at a moment when indignant Americans everywhere were demanding this extreme punishment for the audacious criminals. Americans wanted to hear the roar of rifles in the hands of a firing squad, and the government has apparently agreed that this is the proper course." (18)

   The saboteurs' trial began on July 8 on the fifth floor of the Justice Department in a room whose windows were covered in heavy black curtains to block all daylight. Major General Frank McCoy, the Commission's presiding officer, closed the trial to the press and public due to the nature of the testimony, which involves the security of the United States and the lives of its soldiers, sailors and citizens. (19) McCoy released "communiques" about the trial that contained adjournment times and other meaningless bits of information. He also let reporters view the empty trial chamber, and he released photographs of the trial and the defendants. But other than this, the trial process took place in complete secrecy.

   Although the Washington press corps complained about this secrecy, (20) many, and perhaps most, commentators did not object to it. Arthur Krock of the New York Times dismissed claims for open press coverage of the trial as "thoughtless." (21) The Nation noted that "[a]lien sabotage trials are obviously rich in information that can be of value to the enemy, particularly to other saboteurs still on the loose." (22) In this light, it viewed the "meaningless communiques" emerging from the trial as a "victory" for the press. (23)

   The next piece of real public information about the Commission came three weeks later, when the Supreme Court announced that it would convene a special summer session to entertain the saboteurs' habeas corpus petitions challenging the legality of the military commission. Congress and the public were outraged by the Court's intervention. "The decision to seek recourse in the Supreme Court did not meet popular approval in Washington,"...