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FACTS

In his quest to demonstrate "America's vulnerability and the reach of Nazi power," Adolf Hitler commanded his military leaders to devise a sabotage plan. [i] They came up with a plot that would be run out of Chicago and lead, they hoped, to the destruction of railroads, bridges, and other parts of America's infrastructure.

The plan was to be executed by two four-men teams, both of which would set off from France in submarines headed for the United States. All eight men were born in Germany; all had lived in the United States and returned to Germany sometime between 1933 and 1941. Finally, all but one were citizens of the German Reich. (The one noncitizen, Herbert Hans Haupt, had come to the United States as a child but returned to Germany; there was some dispute as to whether he retained his U.S. citizenship.) One team was to land on Long Island, New York, the other in Jacksonville, Florida. The two were supposed to meet in Cincinnati on July 4, 1941.

George John Dasch, the leader of the Long Island team, and his three associates arrived at their destination on June 13, 1941. As the men began to change out of their military uniforms and bury the various explosive devices they had brought with them, John Cullen, a member of the U.S. Coast Guard, spotted Dasch. The German offered Cullen money to keep quiet, but Cullen reported the incident to the Coast Guard, which in turn informed the FBI. In the meantime, the "Nazi saboteurs" had left Long Island for New York City. Once in the city, Dasch told another member of the team, Ernest Peter Burger, that he intended to tell the FBI about the plot, to which Burger agreed.

Dasch took a train to Washington, D.C., to meet with FBI agents, who he says were skeptical of his story until he opened a briefcase filled with money provided by the Germans. The $82,000 apparently convinced the FBI that it had "something real here." (FBI agents involved with the case refute this story, saying that they took Dasch seriously from the start.)

Dasch's 254-page confession, together with other evidence, enabled the FBI to capture the other seven men by June 27. They too signed confessions.

The arrests of the saboteurs led the FBI to question hundreds of German nationals on the East Coast, with action taken against some. For example, "when it emerged that three of the accused saboteurs had worked as waiters in the United States before the war, the Justice Department ordered the dismissal of all German and Italian waiters, barbers, busboys, housemen and maids from Washington's hotels, restaurants and clubs--on the theory that they might hear too much from loose-lipped customers."

In the meantime, the government had to determine what to do with the eight men they had arrested. President Franklin Roosevelt apparently favored a court-martial. But because the process would require a unanimous verdict and proof beyond a reasonable doubt, the president settled on a military commission that would invoke "lesser standards": for example, a two-thirds, rather than unanimous, vote would suffice for a conviction.

Accordingly, Roosevelt, in his capacity as president and commander in chief of the army and navy, issued an order on July 2, 1942, appointing a military commission to try the saboteurs for offenses against the law of war: Articles 81 (giving intelligence to the enemy) and 82 (spying) of the Articles of War. The order also prescribed regulations for how the trial would proceed.

On the same day, by proclamation, the president declared that "all persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, and who during time of war enter or attempt to enter the United States . . . through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals." The proclamation also stated that all such persons were denied access to the courts.

In accord with the order, the FBI handed the saboteurs over to the military, which kept them in custody for a trial before the commission.

On July 8, 1942, the commission met and proceeded with the trial, but defense lawyers, believing the deck was stacked against them, decided to challenge Roosevelt's authority to try their clients in a military tribunal. On July 28, after a federal district court denied their request for a writ of habeas corpus, they went to the U.S. Supreme Court, which heard their appeal the next day. By that time the commission had taken all the evidence for the prosecution and the defense and the case had been closed except for arguments of counsel.

On July 31, 1942, the Supreme Court issued a brief per curiam opinion, holding:

(1) That the charges preferred against petitioners on which they are being tried by military commission appointed by the order of the President of July 2, 1942, allege an offense or offenses which the President is authorized to order tried before a military commission.

(2) That the military commission was lawfully constituted.

(3) That petitioners are held in lawful custody for trial before the military commission, and have not shown cause for being discharged by writ of habeas corpus.

The motions for leave to file petitions for writs of habeas corpus are denied.

Apparently, some of the justices had reservations about this holding, but they nonetheless managed to reach a unanimous decision, which, in turn, paved the way for the eventual execution of six of the eight Nazi saboteurs on August 8. (Burger and Dasch were given long prison sentences for their help in securing the arrests of the others.)

But August 8 was not the end of the case for the U.S. Supreme Court. Three months after it had released its per curiam, it took the unusual step, on October 29, of issuing an opinion justifying its decision.

CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT.

It is conceded that ever since petitioners' arrest the state and federal courts in Florida, New York, and the District of Columbia, and in the states in which each of the petitioners was arrested or detained, have been open and functioning normally. . . .

Petitioners' main contention is that the President is without any statutory or constitutional authority to order the petitioners to be tried by military tribunal for offenses with which they are charged; that in consequence they are entitled to be tried in the civil courts with the safeguards, including trial by jury, which the Fifth and Sixth Amendments guarantee to all persons charged in such courts with criminal offenses. . . .

We are not here concerned with any question of the guilt or innocence of petitioners. . . . But the detention and trial of petitioners--ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger--are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted.

. . . The Constitution . . . invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war.

By the Articles of War, Congress has provided rules for the government of the Army. It has provided for the trial and punishment, by courts martial, of violations of the Articles by members of the armed forces and by specified classes of persons associated or serving with the Army. But the Articles also recognize the 'military commission' appointed by military command as an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by court martial. . . .

From the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases. Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals. And the President, as Commander in Chief, by his Proclamation in time of war h[a]s invoked that law. By his Order creating the present Commission he has undertaken to exercise the authority conferred upon him by Congress, and also such authority as the Constitution itself gives the Commander in Chief, to direct the performance of those functions which may constitutionally be performed by the military arm of the nation in time of war.

An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war. It is unnecessary for present purposes to determine to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation. For here Congress has authorized trial of offenses against the law of war before such commissions. We are concerned only with the question whether it is within the constitutional power of the national government to place petitioners upon trial before a military commission for the offenses with which they are charged. We must therefore first inquire whether any of the acts charged is an offense against the law of war cognizable before a military tribunal, and if so whether the Constitution prohibits the trial. . . .

By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

Such was the practice of our own military authorities before the adoption of the Constitution, and during the Mexican and Civil Wars. . . .

By a long course of practical administrative construction by its military authorities, our Government has recognized that those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission. This precept of the law of war has been so recognized in practice both here and abroad, and has so generally been accepted as valid by authorities on international law that we think it must be regarded as a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War.

Specification 1 of the First charge is sufficient to charge all the petitioners with the offense of unlawful belligerency, trial of which is within the jurisdiction of the Commission, and the admitted facts affirmatively show that the charge is not merely colorable or without foundation.

Specification 1 states that petitioners 'being enemies of the United States and acting for . . . the German Reich, a belligerent enemy nation, secretly and covertly passed, in civilian dress, contrary to the law of war, through the military and naval lines and defenses of the United States . . . and went behind such lines, contrary to the law of war, in civilian dress . . . for the purpose of committing . . . hostile acts, and, in particular, to destroy certain war industries, war utilities and war materials within the United States'.

This specification so plainly alleges violation of the law of war as to require but brief discussion of petitioners' contentions. . . . [E]ntry upon our territory in time of war by enemy belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and war-like act. It subjects those who participate in it without uniform to the punishment prescribed by the law of war for unlawful belligerents. It is without significance that petitioners were not alleged to have borne conventional weapons or that their proposed hostile acts did not necessarily contemplate collision with the Armed Forces of the United States. . . . The law of war cannot rightly treat those agents of enemy armies who enter our territory, armed with explosives intended for the destruction of war industries and supplies, as any the less belligerent enemies than are agent[s] similarly entering for the purpose of destroying fortified places or our Armed Forces. By passing our boundaries for such purposes without uniform or other emblem signifying their belligerent status, or by discarding that means of identification after entry, such enemies become unlawful belligerents subject to trial and punishment.

Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war. It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused.

Nor are petitioners any the less belligerents if, as they argue, they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations. The argument leaves out of account the nature of the offense which the Government charges and which the Act of Congress, by incorporating the law of war, punishes. It is that each petitioner, in circumstances which gave him the status of an enemy belligerent, passed our military and naval lines and defenses or went behind those lines, in civilian dress and with hostile purpose. The offense was complete when with that purpose they entered--or, having so entered, they remained upon--our territory in time of war without uniform or other appropriate means of identification. For that reason, even when committed by a citizen, the offense is distinct from the crime of treason defined in Article III, 3 of the Constitution, since the absence of uniform essential to one is irrelevant to the other.

But petitioners insist that even if the offenses with which they are charged are offenses against the law of war, their trial is subject to the requirement of the Fifth Amendment that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, and that such trials must be by jury in a civil court. . . .

. . . In the light of this long-continued and consistent interpretation we must conclude that Section 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission, or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts. . . .

. . . We conclude that the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission, and that petitioners, charged with such an offense not required to be tried by jury at common law, were lawfully placed on trial by the Commission without a jury.

Petitioners, and especially petitioner Haupt, stress the pronouncement of this Court in the Milligan case that the law of war 'can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed'. Elsewhere in its opinion, the Court was at pains to point out that Milligan, a citizen twenty years resident in Indiana, who had never been a resident of any of the states in rebellion, was not an enemy belligerent either entitled to the status of a prisoner of war or subject to the penalties imposed upon unlawful belligerents. We construe the Court's statement as to the inapplicability of the law of war to Milligan's case as having particular reference to the facts before it. From them the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war save as--in circumstances found not there to be present and not involved here--martial law might be constitutionally established.

The Court's opinion is inapplicable to the case presented by the present record. We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war. It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries, and were held in good faith for trial by military commission, charged with being enemies who, with the purpose of destroying war materials and utilities, entered or after entry remained in our territory without uniform--an offense against the law of war. We hold only that those particular acts constitute an offense against the law of war which the Constitution authorizes to be tried by military commission. . . .

[i]. We derive this account from George Lardner Jr., "Nazi Saboteurs Captured!", Washington Post, January 13, 2002. This article is based on research conducted by political scientist David J. Danelski.