1942 August 3

Military Tribunal Convicts German Saboteurs: Civil Liberties Issues Continue

 

Eight German saboteurs, who had landed in the U.S. on the 12th of June 1942 and immediately captured, were convicted by a special military commission on this day. The case of the saboteurs is filled with serious civil liberties problems.

All of the eight German (four landed on Long Island and four in Florida) had previously lived in the U.S. and spoke English. The affair immediately became a comic opera, but then quickly turned into a civil liberties tragedy. One of the saboteurs soon turned himself in to the FBI and all the others were arrested. President Franklin Roosevelt, determined to have them quickly executed and, not trusting civilian courts, created by executive order on the 2nd of July a special military commission to prosecute 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. Roosevelt established the military commission by proclamation earlier in July 1942. The saboteurs were tried in a secret session before the military commission and, on this day, were convicted. The Supreme Court, in an extraordinary special session, upheld the constitutionality of the military commission in Ex parte Quirin, on July 31, 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.

In its decision in Quirin, however, the Supreme Court did not deliver a written opinion, apparently because the justices could not agree on a rationale for upholding the military commission and because they evidently felt pressured to decide and let the executions proceed as quickly as possible. It finally delivered a written opinion on October 12, 1942.

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 of 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.

Read: 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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