1942 July 31

Supreme Court Upholds Military Commission; German Saboteurs to be Executed

 

On the 12th of June 1942, six months after Pearl Harbor and the U.S. declaration of war against Japan and Germany, eight German saboteurs landed in the U.S. (four on Long Island and four in Florida), in what was called Operation Pastorius. They were immediately captured, tried and convicted by a special military commission, and six were quickly executed. On this day, the Supreme Court upheld the constitutionality of the military commissions in Ex parte Quirin.

The affair of the German saboteurs began as a virtual comic opera, but immediately evolved into a legal case with serious civil liberties implications. All of the eight saboteurs had previously lived in the U.S. and spoke English. Soon after landing in the U.S., one of the saboteurs turned himself in to the FBI, and all the others were then arrested. President Franklin Roosevelt determined to have them quickly executed, and, not trusting civilian courts, on the 2nd of July he issued an executive order creating a special military commission to try them. In fact, in an act of complete contempt for due process he told Attorney General Francis Biddle that he would not turn them over to civilian authorities even if ordered to by a court. Meanwhile, in a clear violation of judicial ethics, Supreme Court Justice Felix Frankfurter secretly advised Roosevelt on how to frame the military commission so as to pass the scrutiny of the Supreme Court. The Supreme Court upheld the constitutionality of the commission on this date. The saboteurs were then tried in a secret session before the military commission and were convicted on August 3, 1942. Roosevelt commuted the sentences of two of the Germans because they had cooperated with the prosecution — the other six were executed on August 8, 1942.

Although the Supreme Court upheld the constitutionality of the military commission on this day, it did not deliver a written opinion until October 12, 1942. Apparently, the justices could not agree on a rationale for upholding the military commission, but issued a decision without an opinion because they felt pressure to decide and let the executions proceed as quickly as possible.

There were many civil liberties problems surrounding the entire affair: (1) the legitimacy of the military commission; (2) President Roosevelt’s determination to execute them and contempt for civil procedures; (3) Justice Frankfurter’s private communications with Roosevelt, in clear violation of judicial ethics; and (4) the Supreme Court’s haste in deciding the case but not delivering a written opinion to justify the decision.

Although largely forgotten by most Americans, the military commission and the Supreme Court’s decision in Quirin set a precedent for the military commissions established by President George W. Bush on November 13, 2001, after the terrorist attacks on September 11, 2001. Some historians and legal scholars argue that the WW II commission was legally flawed and should not have been used as precedent for the later commissions.  The Quirin decision was cited in Hamdi v. Rumsfeld, decided on June 28, 2004, and even more extensively in Hamdan v. Rumsfeld, decided on June 29, 2006.

Hear one of Chief Justice Stone’s clerks discuss the Quirin case: http://www.youtube.com/watch?v=E6a0OZj_G3Q

Learn more: Michael Dobbs, Saboteurs: The Nazi Raid on America (2004)

And more: Louis Fisher, Nazi Saboteurs on Trial: A Military Tribunal and American Law (2003)

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