Michael Dobbs - Saboteurs

Once again, the two defense lawyers were on their own.

AFTER CONSULTING with the White House, Attorney General Biddle agreed to accept a full-scale challenge to the president’s proclamation. It seemed preferable to argue the case before the Supreme Court than to risk being accused of flouting the Constitution. On Thursday morning, Biddle and Royall flew to Philadelphia on a military plane. An FBI car met them at the airport, and drove them to Justice Roberts’s farm at Chester Springs, to the west of the city.

Roberts was a gracious host. He served the prosecutor and defense counsel crackers, cheese, and fresh farm milk as he listened to their arguments in favor of a hearing. 4He then invited them to take a tour of the farm while he got in touch with his colleagues. Stone had already agreed in principle to take the case. Roberts was able to persuade Black, who was staying with him as a houseguest, to drop his earlier objections. The other justices signaled their agreement by phone. By the time Royall and Biddle returned from their stroll, the question had been settled. The Supreme Court would interrupt its summer recess for the first time in twenty-two years, and convene in Washington the following Wednesday, July 29, to consider the saboteur case. 5

Announcement of the decision was delayed until Monday evening, and greeted with general astonishment. The Washington Times-Herald hailed the extraordinary Supreme Court session as “a smashing climax” to the saboteur trial that would pit the authority of the judiciary against the power of the presidency. 6Not everybody, however, was happy. The trial had already dragged on for three weeks, far longer than most observers anticipated, and many people felt that it was getting bogged down in legal nitpicking. “There is nationwide grumbling over the length of time it is taking to convict the eight Nazi saboteurs who landed on our coasts from German submarines,” noted the Richmond Times-Dispatch. 7“It is greatly to be hoped that the court will find no ground for granting these writs, and that all the would-be dynamiters and murderers will be promptly executed, including the double-crosser who is said to be trying to save his skin by turning against his pals.”

Before the court could convene, it needed a decision it could formally adjudicate. Royall took care of that on Tuesday evening by filing writs for habeas corpus with a district court in Washington. Habeas corpus—Latin for “you have the body”—is one of the most venerable and venerated legal procedures in the Anglo-Saxon world. It prevents the king or other executive authority from holding people unlawfully by demanding that they be turned over to a legally constituted court. In the words of the Magna Carta of 1215, negotiated between King John of England and his barons, “no free man shall be taken or imprisoned… or exiled or in any way destroyed except by the lawful judgment of their peers or by the law of the land.” The Founding Fathers considered the principle of habeas corpus to be so important that they reaffirmed it in article 1 of the Constitution, rather than relegating it along with other civil liberties to the Bill of Rights. The Constitution states that “the privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion the public safety may require it.”

Filed on behalf of all the saboteurs except Dasch, the petitions for habeas corpus were couched in traditional, centuries-old language. “I am unjustly and unlawfully detained and imprisoned by color of the authority of the United States,” each petition stated. “Wherefore, I pray that a writ of Habeas Corpus be issued by this Court, directed to Brigadier General Albert L. Cox, Provost Marshal General of the United States Army, Military District of Washington, commanding him to produce my body before your Court.” 8

It took District Judge James W. Morris only a few minutes to reject the petitions, citing the presidential proclamation of July 2 that denied “subjects, citizens or residents of a nation at war with the United States” the right to be heard in regular U.S. courts. The stage was now set for a landmark Supreme Court hearing. The case would become known as Ex parte Quirin, after Richard Quirin, one of the seven petitioners.

WHATEVER ITS constitutional significance, the extraordinary Supreme Court session was Washington’s event of the season. Stimson, the crotchety secretary of war, was taken aback to be told by Felix Frankfurter that the Court was “being deluged with applications for entrance” from serving army officers, among other prominent Washingtonians. 9Determined to prevent “a public show,” he ordered the army chief of staff, George Marshall, to station a man at the door to prevent the entry of all uniformed officers, other than those directly connected with the trial.

The following morning, long lines of would-be spectators snaked around the Supreme Court, an imposing building opposite the Capitol completed just seven years earlier on the site of a federal prison. The legal gladiators ascended the gleaming white marble steps of the west portico, beneath a frieze depicting “Authority” and “Liberty” and the inscription “EQUAL JUSTICE UNDER THE LAW.” For the most part, they arrived two by two, pausing for photographers in the sweltering summer sun. The two defense counsel, Royall and Dowell, both in loosely fitting colonels’ uniforms, one very tall, the other short. The two government lawyers, Biddle in his trademark white suit, his assistant Oscar Cox in owlish round glasses. The nation’s two top G-men, J. Edgar Hoover and his ever-present companion Clyde Tolson, in snap-brim hats, sharp suits, and crisp pocket handkerchiefs, Tolson precisely one step behind his boss. Only the saboteurs themselves were missing: the Supreme Court hearing would take place without them.

Inside the courthouse, Stone walked around the table in the wood-paneled conference room, shaking the hands of his brethren, a symbolic reminder of the court’s unity in diversity. Eight justices were present. The ninth, William O. Douglas, was still on his way back from Oregon. Word had already reached the justices via Biddle that FDR planned to execute the saboteurs, whatever the Supreme Court decided.

“That would be a dreadful thing,” said the chief justice. 10

Despite the outward appearance of harmony, Stone’s court was already known for its acrimonious divisions. The chief justice referred to his colleagues as “my wild horses.” 11The most strong-willed of them all was Frankfurter, a former professor of law at Harvard. Short in stature, pugnacious in manner, at once brilliant and arrogant, Frankfurter was contemptuous of anyone who did not share his opinions. He faulted Stone for an excessive preoccupation with legal formalities. He referred to the trio of liberal justices—Black, Douglas, and Frank Murphy—as “the Axis.” 12A European-born Jew, Frankfurter believed that the United States was fighting “a war to save civilization itself,” and treated those who disagreed with him about the need for strong executive power as not only wrong-headed but potentially treasonous. 13A dazzling conversationalist and correspondent, Frankfurter was on intimate terms with many members of the government, beginning with Roosevelt. Earlier in his career, he had served on Stimson’s staff as U.S. attorney for the Southern District of New York, and they had remained close friends.

At conference, Frankfurter quickly moved to disqualify Murphy from any role in the hearing. A few weeks before, Murphy had accepted an army commission as a lieutenant colonel, and had attended a military training camp. A photograph had appeared on the front page of the New York Times of the justice in army uniform, cradling a submachine gun. Frankfurter argued that this created a clear conflict of interest, since the army was a party to the saboteur case. Murphy agreed to step aside. What Frankfurter failed to tell his colleagues was that he had himself talked about the case with his friend the secretary of war, and had even urged Stimson to set up a military tribunal “entirely composed of soldiers.” 14Had this been known at the time, it likely would have been grounds for Frankfurter’s own disqualification from the Supreme Court hearing, in the opinion of many legal observers. 15