FDR's Decision to Use Military Tribunals in 1942

Ken Katkin katkink at NKU.EDU
Sat Nov 17 18:01:43 PST 2001


In today's law.com, Tony Mauro discusses some of the factors that led FDR in
1942 to decide to try the German submarine saboteurs in Quirin in a military
tribunal, rather than a civilian court.  Predictably, Mauro reports that one
reason for using military tribunals was that the government "wanted to secure
death sentences for the saboteurs, which would not have been available in
civilian courts."

Another, less publicized reason, however (according to Mauro) stemmed from the
government's desire to maintain secrecy about certain details of the saboteurs'
capture.  The sensitive details are these:  After arriving on shore in Long
Island, "[o]ne of the Germans, George Dasch, went straight to Washington and
turned himself and the others in to the Federal Bureau of Investigation.  But
when FBI head J. Edgar Hoover announced the arrests, there was no mention of
Dasch's assistance, and the media portrayed the arrests as the result of a
daring capture by FBI agents.  Almost immediately, Biddle, the attorney general,
sought authorization to try the Germans in a secret proceeding -- in part, some
historians assert, to avoid having to reveal that Hoover had embellished the
story of the capture."

In addition, Findlaw.com reports that Dasch (who had previously lived in the
U.S. and even served in the U.S. army) was surprised that he was arrested in
Washington DC after confessing to Hoover and heading off the sabotage plot:
"apparently [he] believed he would be treated as a hero.  Based on his
information, the FBI arrested the other seven saboteurs within a week."

Despite Dasch's instrumental role in exposing and foiling the plot, Dasch was
sentenced to death along with the other seven saboteurs by the military tribunal
(a sentence that I believe a jury would have been unlikely to render against
Dasch, under the circumstances).  After all eight saboteurs were sentenced to
death, however, President Roosevelt quietly commuted the sentences of Dasch and
Ernest Burger (who had supported Dasch's decision to call the FBI).  In 1948,
Dasch and Burger were deported to Germany and freed.  Dasch later tried
unsuccessfully to get a pardon and return to the United States.

All things considered, I think these facts lend support to Bryan Wildenthal's
view that "Quirin was wrongly decided (it's of the ilk of Korematsu, another
poisoned gift of WWII to our constitutional jurisprudence)."

BTW The two news articles discussed herein can be found at:
http://www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagename=law/View&c=Article&cid=ZZZ1430F4UC&live=true&cst=1&pc=0&pa=0&s=News&ExpIgnore=true&showsummary=0

http://news.findlaw.com/legalnews/s/20011116/attacktribunalhistory.html

--Ken Katkin



Bryan Wildenthal wrote:

> I'll bite on John's final paragraph.  I have not had time for various
> reasons to contribute to the list this autumn, but have been following the
> discussion with interest.  But President Bush's executive order simply
> cannot be left un-responded to by any responsible lawyer, or indeed any U.S.
> citizen who cares about what this country stands for (I single out citizens
> only because we are the responsible constituents of the body politic which
> gives Bush his power).  Paraphrasing the President himself (whose conduct of
> this crisis, I should note, I admire in many ways), either you are for this
> order (and thus, in my view, for a dangerous abandonment of part of our
> birthright of liberty) or you're against it.
>
> Yes, I think Quirin was wrongly decided (it's of the ilk of Korematsu,
> another poisoned gift of WWII to our constitutional jurisprudence), though
> admittedly a closer case than military trial within the U.S. of any
> perpetrators of the Sept. 11 attacks apprehended within the U.S. (citizen or
> non-citizen).  And yes, I think Art. I:8:10 plainly must be subject to Art.
> III, Amend. VI, etc.
>
> Pardon me for being old-fashioned, and a boring textualist, but last I
> checked the Constitution says that "the trial of all crimes, except in cases
> if impeachment, shall be by jury," etc.  Art. III; see also Amends. VI &
> XIV, etc.  Yeah, yeah, there are arguable exceptions, like military
> courts-martial under Art. I:8:14, but arguments to extend that, or cases
> like Quirin, to crimes committed by non-uniformed freelance civilians within
> the US at times and places when the civil courts are open for business (see
> Ex parte Milligan) simply illustrate to me the frightening capacity of
> lawyers to rationalize away our fundamental freedoms.
>
> The notion that the President and his executive subordinates might
> constitutionally be able to conduct "military commission trials" of
> non-uniformed civilians not part of any declared or formally recognizable
> "war" (whether citizen or alien plainly does not matter, since all "persons"
> are protected by the relevant guarantees, even illegal aliens), for acts
> (however horrific) allegedly committed within the territorial jurisdiction
> of the U.S. plainly falling within the scope of federal and state criminal
> laws, outside of any reasonably definable "theater of war," at a time and
> place when the civil courts are open and functioning, shocks me so deeply
> that I am literally almost speechless.
>
> I am even more deeply shocked, and truly demoralized, if more than 1% of the
> constitutional scholars on this list would countenance application of Bush's
> order in the circumstances described.  (How to handle suspected terrorists
> captured overseas during military operations in a theater of war is a
> different and more difficult question.)
>
> Of course, I have already been shocked and demoralized by how many
> colleagues on this list have suggested openness to the legitimacy of
> government torture under some of the circumstances raised by this crisis.
> It so happened that Prof. Paul Finkelman was visiting my school as a guest
> lecturer at the time that issue arose on the list, and he and I happened to
> visit the torture-device exhibit at San Diego's Museum of Man.  It's a grim
> and disturbing exhibit (to put it mildly! I felt physically ill for hours
> afterward), and I think many of the viewpoints offered on the list might
> have been different following a one-hour tour of it.  People can (and will)
> rationalize ANY evil once the door is opened to even the theoretical
> justifiability of something like torture.  But I don't have time to go there
> any further at the moment.
>
> Bryan Wildenthal
> Thomas Jefferson School of Law
>
> "Those who would sacrifice essential liberty for a little temporary safety
> deserve neither liberty nor safety."  -- Benjamin Franklin
>
> > -----Original Message-----
> > From: John Noble [mailto:jnoble at DGSYS.COM]
> > Sent: Friday, November 16, 2001 12:28 PM
> > To: CONLAWPROF at listserv.ucla.edu
> > Subject: Re: Bush Military Court Order
> >
> >
> > If A then B?
> >
> > A) Title 10 + Joint Resolution + Quirin = executive authority
> > to try and
> > sentence unlawful belligerents in the war on terrorism
> >
> > B) Title 10 amended + Joint Resolution + Quirin = executive
> > authority to
> > try and sentence unlawful belligerents in the war on drugs
> >
> > Is there a constitutional basis for distinguishing between
> > international
> > terror and international drug trafficking -- to exclude drug
> > smuggling and
> > distribution from a broad definition of terrorism; or to deny
> > international
> > drug trafficking its own place in the "Law of Nations" that
> > undergirds the
> > Art. I, sec. 8, cl. 10 authority? Is there a constitutional
> > basis, contra
> > Quirin, for distinguishing between citizens and non-citizens?
> > In short,
> > does the Constitution prevent the use of military tribunals to try and
> > sentence street level drug dealers to "combat" an
> > international network of
> > "narco-terrorists"?
> >
> > The limitation that occurs to me is that offenses against the Law of
> > Nations require some measure of state-sponsorship. If that is
> > the case, is
> > the President's authority evaporating as quickly as the
> > Taliban's hold on
> > Afghanistan? -- does the President's authority extend at all
> > to the broader
> > Al Qaeda network, the elements that are not state-sponsored?
> >
> > The other limitation, reflected in Title 10's limited grant
> > of jurisdiction
> > over violations of the "laws of war," is that the authority might be
> > limited to cases of violent aggression or depend upon a
> > declaration of war.
> > But that limitation isn't reflected in the broader
> > constitutional grant of
> > authority to define and punish offenses against the Law of
> > Nations, which
> > Quirin characterizes as "including those which pertain to the
> > conduct of
> > war." In fact, unless the operative limitation is state sponsorship, I
> > don't see why Quirin's reading of I.8.10 doesn't authorize Congress to
> > create a non-Article III tribunal with unreviewable jurisdiction over
> > copyright infringement claims (post-Berne). Can Congress
> > withdraw from the
> > Article III judicial power, and the protection of the 6th
> > Amendment, any
> > crime or claim under U.S. law which is also an offense
> > against the Law of
> > Nations?
> >
> > Is anyone inclined to the view that Quirin is wrong -- that the I.8.10
> > authority to "define and punish" offenses against the law of
> > nations is not
> > in derogation of the judicial power to "decide" cases arising
> > under the
> > laws of the United States. Is the conflict reconciled by reading the
> > judicial power to extend to cases that arise under the laws
> > of the United
> > States, even if they also violate the law of nations -- whether it is
> > copyright infringement, drug trafficking, or blowing up skyscrapers?
> >
> > Am I missing something obvious?
> >
> > John Noble
> >

--
Prof. Ken Katkin
Salmon P. Chase College of Law
561 Nunn Hall
Northern Kentucky University
Highland Heights, KY 41099
(859) 572-5861 phone
(859) 572-5342 fax
katkink at nku.edu

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