Michael Dobbs - Saboteurs

At noon precisely, the marshal of the court shouted the traditional announcement for a new session: “Oyez, oyez, oyez”—Hear ye, hear ye, hear ye. The heavy purple drapes of the court’s main chamber parted, and the black-robed justices settled into their nail-studded leather chairs, dwarfed by the huge white marble columns behind them. When the building was first inaugurated, one justice complained that he and his colleagues would look like “nine black cockroaches in the Temple of Karnak.” It was an apt description, except that only seven “black cockroaches” were present on this occasion. An unhappy Murphy sat behind the curtain as an observer, and Douglas would not arrive until the following day.

Royall scarcely had time to approach the wooden lectern in front of the chief justice and introduce himself as counsel for the saboteurs when he was interrupted by his old Harvard law professor. Justice Frankfurter noted that writs for habeas corpus normally went from the district court to an ordinary appeals court, not the highest court in the land. Why should the Supreme Court even have jurisdiction in this case? Because of its urgency, replied Royall. Under the procedure laid down in the presidential proclamation, a verdict could be delivered and a sentence carried out without any kind of appeal. “A man has a right to an appeal,” he said. Frankfurter seemed unconvinced, but Biddle supported Royall, saying the government did not object to the Supreme Court considering the case.

The preliminaries out of the way, Royall launched into his main argument, which was that Roosevelt’s proclamation establishing a military commission was unconstitutional. He conceded that the saboteurs had been transported to America in a German U-boat, but argued that the government had failed to show sufficient reason to try them by military tribunal. The Articles of War reserved two crimes for military jurisdiction: espionage and “assisting the enemy” in an area of combat operations. Neither charge applied to his clients.

“They constituted, I suppose, an invading force?” 16

This from Justice Robert Jackson, who would later serve as the chief U.S. prosecutor of Nazi war crimes at Nuremberg. His words echoed around the cavernous chamber, bouncing off the marble floors. Spectators at the back of the hall had to lean forward to hear what the justices and opposing counsel were saying through the faulty acoustics.

“No, sir,” replied Royall. He noted that several defendants claimed that they had only pretended to go along with the sabotage plan in order to escape from Germany and return to America. Furthermore, Long Island and Florida, where the saboteurs originally landed, could hardly be described as areas of combat operations.

Justice James Byrnes took Royall’s argument and reduced it to absurdity: “Your contention is that if the Führer and seven generals of the Army of the Reich should land from a submarine on the banks of the Potomac, having discarded their uniforms, they are entitled to every right you have discussed in the application for a writ of habeas corpus?”

“My argument would have to carry that fact, and does,” Royall acknowledged. Under Milligan, unless an enemy soldier was detained within a theater of combat operations, he was entitled to the same legal rights as anyone else simply because he was “a person in America.”

But surely, Frankfurter insisted, the enemy determined “the theater of operations” through his acts of aggression. “If a parachutist should come into this building, or near this building, would this not be a theater of operations?”

Royall conceded that this was so. His clients, however, arrived “unarmed.” That is to say, they came with explosives, but “they did not engage in any actual combat operations.”

“I am glad to know what ‘unarmed’ is,” rejoined Frankfurter, as the chamber erupted in laughter. 17

UNDER NORMAL circumstances, it is impossible to tell what the justices of the Supreme Court are thinking as they sit on the bench, weighing the arguments of opposing counsel. A few months later, however, Frankfurter would offer a running commentary of his views “on the issues of the saboteur case ever since my mind came to rest upon them.” He did so in the form of a fictional dialogue between himself and the saboteurs, which he circulated to his fellow justices. Entitled “F.F.’s Soliloquy,” it is one of the most unusual documents in Supreme Court history. 18

Saboteurs:Your Honor, we are here to get a writ of habeas corpus from you.

F.F.:What entitles you to it?

Saboteurs:We are being tried by a Military Commission set up by the President although we were arrested in places where, and at a time when, the civil courts were open and functioning with full authority and before which, therefore, under the Constitution of the United States we were entitled to be tried with all the safeguards for criminal prosecutions in the federal courts… F.F.:You damned scoundrels have a helluvacheek to ask for a writ that would take you out of the hands of the Military Commission and give you the right to be tried, if at all, in a federal district court. You are just low-down, ordinary, enemy spies who, as enemy soldiers, have invaded our country and therefore could immediately have been shot by the military when caught in the act of invasion. Instead you were humanely ordered to be tried by a military tribunal convoked by the Commander-in-Chief himself, and the verdict of that tribunal is returnable to the Commander-in-Chief himself to be acted upon by himself. To utilize a military commission to establish your guilt or innocence was plainly within the authority of the Commander-in-Chief.

Frankfurter was equally unimpressed by Royall’s secondary arguments. The defense maintained that even if the president had a right to set up a military commission to try the saboteurs, he had failed to abide by the Manual for Courts-Martial. Article 46 of the manual provided for a review of tribunal proceedings by the judge advocate general. Article 50 1⁄2 stated that such a review must be completed before the trial record and sentence were sent to the president for execution. The president’s proclamation, Royall argued, short-circuited these established procedures. Frankfurter, by contrast, believed that the courts-martial manual did not apply to enemy agents. All the saboteurs were achieving by their appeal to the Supreme Court was endless legal trouble:

You’ve done enough mischief already without leaving the seeds of a bitter conflict involving the President, the courts and Congress after your bodies will be rotting in lime. It is a wise requirement of courts not to get into needless rows with the other branches of government by talking about things that need not be talked about if a case can be disposed of with intellectual self-respect on grounds that do not raise such rows. I therefore do not propose to be seduced into inquiring what powers the President has or has not got, what limits the Congress may or may not put upon the Commander-in-Chief in time of war, when, as a matter of fact, the ground on which you claim to stand— namely, the proper construction of these Articles of War—exists only in your foolish fancy. That disposes of you scoundrels.

All in all, Frankfurter concluded, such abstract constitutional debates were a waste of time and national energy, a pastime better postponed “until peacetime.” For the moment, however, he kept these thoughts to himself.

“MAY IT please the Court,” Biddle began, when it was his turn to address the justices. “The United States and the German Reich are now at war. That seems to be the essential fact on which this case turns and to which all of our arguments will be addressed.”