Michael Dobbs - Saboteurs

Trials of people who cooperated with the saboteurs also took place in New York. Anthony Cramer and Hermann Faje were sentenced to nine and five years respectively for “trading with the enemy.” Kerling’s friend Helmut Leiner received eighteen years for trading with the enemy and concealing treason, and was released on parole in 1954. Hedwig Engemann spent three years in prison on a similar charge.

Marie Kerling was freed without a trial. Fortunately for her, the FBI had arrested her husband half an hour before she was due to meet with him. She had no case to answer.

ONE OF the justices involved in the Ex parte Quirin ruling, William O. Douglas, liked to quote the dictum of one of his predecessors: in the Supreme Court, cases are decided 90 percent on emotion, only 10 percent on the law. 5There are few better illustrations of what he meant than the case of the Nazi saboteurs. Eight months after Pearl Harbor, none of the justices was willing to dispute the extraordinary war powers claimed by the president. In denying habeas corpus to the saboteurs, and partially overturning Ex parte Milligan, they first decided what they should do, and then searched for the legal texts to support their decision.

As chief justice, Harlan Stone assigned himself the task of writing a unanimous opinion that would keep all his “wild horses” riding together. Immediately after the saboteur ruling, he returned to his summer retreat in New Hampshire. Drafting the opinion was an agony for him, both physically and mentally. He was suffering from a severe bout of lumbago, contracted from “an extremely cold Pullman car” on the train from Washington and two days of strenuous mountain hiking. 6By the time he started work on the opinion, he was in such pain he had to dictate his correspondence to his wife.

Sorting through the intricacies of the Constitution, the Manual for Courts-Martial, and various international conventions codifying the practices of war was “a mortification of the flesh” for the chief justice. 7He was unimpressed by the hastily written briefs that Biddle and Royall had submitted to the Supreme Court, and wanted to establish a more solid legal ground for a ruling in favor of the government than the attorney general had been able to provide. “I certainly hope the military is better equipped to fight the war than it is to fight its legal battles,” he wrote his law clerk, Bennett Boskey, in some irritation. Since Stone did not have a proper law library at his country retreat, he relied on Boskey, who was still in Washington, to document his conclusions with the relevant legal footnotes.

Most troubling of all to Stone was the thought that the saboteurs might have been executed illegally, without the mandatory review stipulated by the Articles of War. He very much regretted agreeing to drop the paragraph in the per curiam ruling that indirectly urged the president to comply with the review procedures. The paragraph in question would not have been eliminated, he told Boskey, “if we had had a little more time to consider it; as it was, we went into Court a little late.” 8But it was too late to do anything about this now, and none of the justices wanted to give the two surviving saboteurs grounds for appealing their sentences. In the end, Stone decided to pass over the matter in his final opinion “to avoid indecent exposure of some very worthy gentleman.” 9

On the central issue of why the Milligan ruling should not apply to the saboteurs, the chief justice described them as “unlawful belligerents,” in contrast to Milligan, who was neither a belligerent nor a member of the enemy armed forces. 10The fact that at least one of the saboteurs, Haupt, was a U.S. citizen was irrelevant, he decided. Haupt’s offense, Stone wrote, was that he entered the country as an unlawful belligerent for a hostile purpose, “which constitutes a violation of the law of war.” Unlike Haupt, Milligan did not cross enemy lines.

While supporting the president’s right to establish a military commission to try the saboteurs, Stone also upheld the saboteurs’ right to appeal to the civilian courts. He did so, however, in an extremely cryptic way, claiming there was “nothing” in the presidential proclamation that precluded the petitioners from taking their case to the Supreme Court. In order to maintain the court’s unanimity, Stone deleted a much stronger sentence from an earlier draft explicitly asserting the saboteurs’ constitutional right to a hearing. “There were so many eggs in the case which I felt it necessary to avoid breaking,” he wrote a friend, “that I am afraid the opinion was not good literature. I hope you noticed that the opinion flatly rejected (as unobtrusively as possible) the President’s comment that no court should hear the plea of the saboteurs. That, I thought, was going pretty far.” 11

Formally issued on October 29, 1942—twelve weeks after Quirin and his five comrades walked to the electric chair—Stone’s opinion in Ex parte Quirin has reverberated through the decades. In the aftermath of the ruling, Biddle wrote to Roosevelt claiming that the inconvenient Milligan precedent was “out of the way” for all practical purposes and “should not bother us any further.” 12Once the war was over, however, several justices had second thoughts about the case. The saboteur trial was “not a happy precedent,” Justice Frankfurter noted in 1953, after casting a losing vote in favor of a stay of execution for Julius and Ethel Rosenberg. 13In 1962, Justice Douglas told an interviewer that the saboteur case showed it was “extremely undesirable” to announce a decision without issuing an opinion to explain it. Once the search for grounds to justify a decision gets under way, Douglas noted, “sometimes those grounds crumble.”

The sharpest criticism of Ex parte Quirin came from a legal scholar who served as law clerk to Justice Black at the time of the saboteur hearing. John P. Frank complained that Black and the other justices had allowed themselves to be “stampeded” by the executive branch. If judges are to “run a court of law and not a butcher shop,” Frank wrote in a 1958 book, “the reasons for killing a man should be expressed before he is dead; otherwise the proceedings are purely military and not for [the] courts at all.” This contrasted with the opinion of a leading constitutional scholar, Robert Cushman, a few months after the six saboteurs were executed. “The Supreme Court stopped the military authorities and required them, as it were, to show their credentials. When this had been done to the Court’s satisfaction, they were allowed to proceed.” 14Cushman hailed the court’s action as “a wholesome and desirable safeguard to civil liberty in time of war.”

Views about Quirin and Milligan tend to veer back and forth, depending on whether America is at war or at peace. In times of peace, pressure mounts for curbs on executive power. In times of war, the pendulum swings in the opposite direction. After the attacks on the World Trade Center and the Pentagon on September 11, 2001, the Bush administration cited the Quirin decision as a legal basis for establishing military tribunals to try al-Qaeda terrorists.

Reflecting on the relationship between the two branches of government in wartime, Chief Justice William Rehnquist noted in a 1999 speech that both Lincoln and FDR had put a higher value on prosecuting the war than obeying the Constitution. By and large, the courts had gone along with the president. “To lawyers and judges, this may seem a thoroughly undesirable state of affairs, but in the greater scheme of things it may be best for all concerned,” Rehnquist concluded. “While we would not want to subscribe to the full sweep of the Latin maxim Inter Arma Silent Leges (In a time of war, the laws are silent), perhaps we can accept the proposition that, though the laws are not silent in wartime, they speak with a muted voice.” 15