Michael Dobbs - Saboteurs

Each sighting was duly investigated, swelling the FBI’s already voluminous files on Kappe, but none was ever corroborated. Which was hardly surprising: the suspects were all in Germany.

LAMBDIN P. MILLIGAN was one of those Americans, like Dred Scott and Ernesto Miranda, who lead unremarkable lives but are nevertheless destined to achieve immortality in legal textbooks. If it were not for the Supreme Court decision that bears his name, he would be forgotten entirely: a small-town lawyer from Indiana known to his friends as a fine conversationalist, an ardent supporter of states’ rights, and a Northerner who sympathized with the South during the Civil War. Lincoln supporters dubbed people like Milligan “copperheads,” after a particularly venomous snake that strikes without warning. But what made this particular copper-head a historic figure—and what made his case relevant to the case of the Nazi saboteurs nearly eight decades later—were the constitutional arguments that raged over his trial by a military commission.

Back in 1862, when the United States was fighting for its very survival, Lincoln issued a presidential proclamation establishing military commissions to try “all Rebels and Insurgents” as well as “their aiders and abettors.” The decree effectively suspended the centuries-old legal tradition of habeas corpus that obliged the government to turn over suspected criminals to civilian courts for trial. Lincoln argued that it was sometimes necessary to resort to “otherwise unconstitutional” measures to save the nation and constitution, like cutting off a limb to save the body. The president’s opponents accused him of behaving like a tyrant. Under Lincoln’s decree, the authorities could sentence troublemakers to long terms of imprisonment or even death with a minimum of fuss. It was the perfect weapon to use against Milligan, who was suspected of conspiring with other copperheads to distribute arms to draft resisters. Within weeks of his arrest in October 1864 on charges of inciting insurrection and “giving aid and comfort to the enemies of the United States,” he was duly sentenced by a military commission in Indiana to death by hanging.

A lawyer himself, Milligan knew that his best chance of a reprieve was to appeal his “unlawful imprisonment” to the federal courts. By the time the case came before the Supreme Court, the Civil War was over, and radical Republicans were using the assassinated president’s 1862 decree to impose military justice on the newly conquered South. Milligan’s lead defense counsel was James A. Garfield, a future president of the United States. He argued that the government had violated the Constitution by imposing martial law in regions of the country far from the actual fighting. The Supreme Court agreed with Garfield, ruling that martial law could only be imposed in cases of obvious necessity, such as a foreign invasion shutting down the civilian courts. As long as the civilian courts were operating normally, as they were in Indiana in 1864, defendants were entitled to a civil trial. By a 5‒4 majority, the Supreme Court issued one of the most vigorous defenses of civil liberties in American legal history:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism… 1

While often criticized as being too sweeping, Ex parte Milligan had never been overruled. As counsel for seven of the eight saboteurs, Royall understood immediately that this seventy-six-year-old case offered the best hope of saving his clients from execution. Like Milligan and Garfield before him, he would appeal to the Supreme Court. The question was, how?

In normal times, appeals to the Supreme Court proceed according to a leisurely timetable. A case must wend its way through a multitude of lower courts—district court, appeals court, perhaps a state supreme court— before it becomes eligible for consideration by the highest court in the land. On this occasion, Royall understood that there was no time to lose: Roosevelt’s order setting up the military tribunal made no provision for an appeal process, meaning that a verdict could be implemented without delay. By the time the Supreme Court got around to hearing the case, the saboteurs could already be dead.

Royall knew that the quickest way of getting the Supreme Court to hear an appeal was to apply to an individual justice for a temporary writ asserting jurisdiction. But the Court was already in summer recess, and most of the justices were on vacation. Only one justice was available in Washington: Hugo Black, a Roosevelt appointee known as an ardent defender of civil liberties. Encouraged by Black’s reputation, Royall went to see him, and asked him to issue a writ to review the saboteur case in light of Milligan.

“You mean the case of these German spies?” 2

“We don’t call them spies, but I suppose that’s the case you are talking about.”

“I don’t want to have anything to do with that matter.”

“Mr. Justice, you shock me. That’s all I can say to you.”

Royall tried to reach several other justices, including Felix Frankfurter, his old Harvard law professor, but they were all unavailable. On Monday, July 20, he read in the Washington Post that Justice Owen Roberts, a former federal prosecutor appointed to the court by Herbert Hoover, was in town to attend the funeral of a former colleague. In the absence of Chief Justice Harlan Fiske Stone, who was on vacation in New Hampshire, Roberts was the senior member of the Supreme Court in the Washington area.

Royall immediately went to the justice’s chambers and waited for Roberts to return from the funeral. Roberts agreed that the saboteur case raised important constitutional issues that merited review. Before taking any action, however, he wanted to consult his eight brethren, including Black. He invited Royall to come to his Pennsylvania farmhouse later in the week together with Biddle to discuss the case.

The following day, Tuesday, Royall and Dowell formally notified the military commission of their decision to appeal to the Supreme Court. They warned McCoy and his colleagues that there was a risk that some of the arguments developed behind closed doors in room 5235 could become public as a result of a Supreme Court hearing. Dowell, in particular, was worried that an open Supreme Court session would generate enormous publicity that could harm the war effort. “As a soldier,” he told the commission, “I cannot bring myself to the point of doing that.” 3

Dasch’s lawyer, Colonel Ristine, said he had come to the case late, without fully investigating the constitutional issues involved. As a serving army officer, he did not feel he was “authorized” to appeal to the Supreme Court.

As they had at the beginning of the trial, Royall and Dowell were trying to strike a balance between their responsibilities as defense lawyers and their duties as military officers. They were giving their superiors a chance to order them back into line, on national security grounds. In the event, the military commission followed the example set by the president a few weeks earlier, when informed that the defense was planning to challenge his decree denying the saboteurs access to the civilian courts. After a short break, McCoy announced that “the Commission does not care to pass on that question.”