Michael Dobbs - Saboteurs

Not only was this war, the attorney general contended, it was “total war.” It was impossible to compare the “East Coast of today” with the “Indiana of Milligan in 1864.” Milligan was arrested far from the front lines. Modern war was “fought on the total front, on the battlefields of joined armies, on the battlefields of production, and on the battlefields of transportation and morale, by bombing, the sinking of ships, sabotage, spying, and propaganda.” It was impossible to distinguish one battlefield from another. “We know that the two submarines were able to cross our lines and land these men on our patrolled shores. We know that our whole East Coast is a theater of operations in substantially the same sense as North Atlantic or the British Isles.”

Biddle had made a valid point. The Articles of War, which governed military commissions, were written in the eighteenth century at the time of the Revolutionary War. They were designed to deal with the type of situation that arose when Major André was discovered “lurking” behind American lines close to West Point after contacting Benedict Arnold. In modern times, however, unlawful belligerents could turn up anywhere. They would not restrict themselves to “lurking or acting as a spy in or about… the fortifications, posts, quarters, or encampments of the armies of the United States,” in the language of the Articles of War.

On the other hand, as Royall pointed out, the government’s definition of “total war” was so elastic that it could be stretched to cover virtually any crime committed in wartime that might conceivably “aid the enemy.” If the battlefield was everywhere, then military tribunals could also be established everywhere. A worker who went on strike in a defense plant could be hauled before a military commission on the grounds that he had helped the enemy on “the battlefield of production.” There had to be some limit on the “total war” theory, Royall argued, “or we have very few constitutional guarantees left when we go to war.”

At first, the justices listened respectfully to the attorney general as he rebutted Royall’s arguments, sometimes saying “war of law” when he meant “law of war.” 19But soon they were challenging him to define where he drew the line between crimes that could and could not be tried by military commission.

Justice Black wanted to know what would happen if a U.S. citizen was “picked up on the street” several months after landing in the country as part of a group of enemy saboteurs. Would he be tried by military tribunal? “That is Haupt’s case perfectly,” Biddle replied. “Haupt landed, left his stuff buried in the sand, got away, and was arrested in the internal part of the country.” In such a case, he had no problem arguing that the military should have jurisdiction.

“Suppose,” said Black, “that a man had been accused of trying to interfere with work in a defense plant, and it was said that in some way he had received instructions from a foreign country. Under the [president’s] order, would he be tried by a court-martial?”

“It is right on the edge,” the attorney general replied.

“Where is the line?” asked Justice Jackson.

Biddle was reluctant to be precise. But he was sure of one thing, he told the justices. The line had to be drawn to include groups of saboteurs who invaded “the coast of the United States,” evading patrols that were specifically on the lookout for enemy submarines and invaders. Furthermore, these particular saboteurs had taken off their uniforms, and were therefore not entitled to the privileges traditionally conferred on prisoners of war.

“The mere absence of uniforms makes a difference?” asked Justice Stanley Reed.

“All the difference in the world.”

The following day, Thursday, Biddle turned his attention to the Milligan case, which he described as “bad law” because it interfered with the responsibility of the commander in chief to defend the country. It was “preposterous” to argue that the president could not take “proper steps to repel and capture” invaders. But even if the justices were reluctant to completely overturn Milligan, Biddle thought there were still grounds for carving out an exception for the saboteurs. Milligan was the citizen of a state that had kept out of the Civil War fighting. The saboteurs were enemy invaders.

In his rebuttal, Royall pointed out that the saboteurs had not blown up anything, and had never sought to retrieve the explosives they buried when they first came ashore. He continued to insist that the saboteurs had not passed through a “zone of combat operations.”

“I don’t quite get your distinction,” interrupted Justice Black. “What about the planes that fly over foreign countries and drop bombs and destroy property far removed from the scene of battle?”

“If it was a military plane, that is generally accepted as a means of fighting or of combat.”

“A submarine is, too.”

“A submarine is, but these submarines in this case did not do anything but transport.”

Winding up for the plaintiffs, after nine hours of debate spread over two days, Royall agreed with Biddle that the United States was fighting a war for its very survival. He then paraphrased the majestic words of Justice Davis in Ex parte Milligan. “The Constitution is not made for peace alone, it is made for war as well as peace. It is not merely for fair weather. The real test of its power and authority, the real test of its strength to protect the minority, arises only when it has to be construed in times of stress.”

“The Court stands adjourned until twelve noon tomorrow,” announced the chief justice, rapping his gavel on the table in front of him.

“MEMBERS OF the Commission, this has been a most unusual case,” declared Judge Advocate General Myron Cramer on the morning of July 31, when the military tribunal reconvened to hear closing arguments. As the army’s senior law enforcement officer, Cramer was assisting Biddle with the prosecution. The case was unusual, Cramer said, because it was the first time a military commission had met in seventy-seven years. It was even more unusual because the accused all claimed to be innocent of the charges against them, while admitting to doing all the things the prosecution said they did.

“They claim that instead of being invaders, they are refugees.” The judge advocate general injected a note of sarcasm into the word “refugees.” Such a claim was preposterous, he said. Not only were they trained saboteurs, they had passed through a theater of naval operations and “came and landed in the darkness of night on our shores.” Had the beaches of Long Island and Florida been better protected, the U.S. Army would have had every right to shoot the prisoners down “as an invading force.” For these reasons, Cramer urged the commission to sentence all the defendants to death.

Winding up for the defense, Royall had the tricky task of assuring the judges that he had complete confidence in their “wisdom and fairness” only hours after pleading with the Supreme Court to declare the military tribunal unconstitutional. Implicitly recognizing that the commission was likely to find his clients guilty, he sought to spare them from the death penalty. His main argument was that the defendants “did not blow anything up.” The law had always drawn a clear distinction between intention and accomplishment, Royall noted. A man who bought a pistol “with intent to kill” would be fined no more than $50 “in most jurisdictions.”

It was important, Royall insisted, for America to remain true to its own system of justice, even at times of greatest stress and crisis. “We want to win this war, and we are going to win it, but we do not want to win it by throwing away everything we are fighting for.”