Bush Can’t Rely on the FDR Precedent

To the credit of President Bush, he responded to the Sept. 11 terrorist attacks by going to Congress to request authority for military action. In doing so, he broke ranks with Presidents Harry S. Truman, George Bush and Bill Clinton, all of whom claimed they could order large-scale military operations without seeking statutory authority from Congress. After this promising start, it is thus disappointing to see Bush act unilaterally in creating a military tribunal to try terrorists. His Nov. 13 order establishes procedures for detaining and trying noncitizens suspected of terrorist actions. It prohibits any judicial review of these secret proceedings.

Former Atty. Gen. William P. Barr and Andrew G. McBride, in defending Bush’s military order, have argued that the “most apt precedent is the case of the eight Nazi saboteurs.” That case, Ex Parte Quirin (1942), is far from apt, though, at first glance, the U.S. Supreme Court decision regarding the case seems to support the Bush order. Without a dissenting or even concurring vote, the justices upheld the authority of President Franklin D. Roosevelt to conduct a secret military trial of Nazi saboteurs. As one looks closer, however, this judicial precedent becomes much less attractive.

In June 1942, eight Germans landed on American beaches, four at the tip of Long Island and the others on the Florida coast. They planned to blow up U.S. war plants, bridges, transportation facilities and even department stores. Within a matter of days, two of the Germans--George John Dasch and Ernest Peter Burger--decided to betray their colleagues. When Dasch telephoned the FBI to reveal the planned operation, FBI agents dismissed him as a crank caller. He then went to Washington to make a full confession. This time, the FBI took the matter seriously and rounded up the other seven.

Atty. Gen. Francis Biddle wanted a secret trial to keep certain facts from the public. FBI Director J. Edgar Hoover took full credit for uncovering the operation and did not want it known that one of the saboteurs had turned himself in and fingered the others. A Washington Post editorial had praised the FBI’s “brilliant job of detection.” Also, the government was not eager to broadcast how easily German U-boats had reached American shores undetected.

On July 2, Roosevelt issued a proclamation denying “certain enemies” access to federal courts. All persons who were subjects, citizens or residents of “any nation at war” with the United States, and who entered the United States to commit sabotage or other warlike acts, “shall be subject to the law of war and to the jurisdiction of military tribunals.” Defendants were denied any judicial remedies. In a separate action, Roosevelt created a military commission to try the eight saboteurs and appointed Cols. Kenneth C. Royall and Cassius M. Dowell as defense counsel.

Several issues bedeviled the administration. Roosevelt released his proclamation after the arrests. Under law, the maximum penalty for sabotage was 30 years. By allowing two-thirds of a military tribunal to sentence the Germans to death, Roosevelt created a punishment that exceeded what would have been permitted by a military trial. The concurrence of all members of a court-martial is needed for the death penalty. The ex post facto clause of the Constitution prohibits Congress from increasing penalties after a crime has been committed. How could FDR do what was constitutionally forbidden to Congress?

Second, Roosevelt’s military tribunal could write its own rules. Court martials must follow procedures established by Congress. Various “articles of war,” placed in the statutes, govern the military forces of the United States, and under them, any finding of a general court martial for a capital case had to be reviewed by three officers in the Judge Advocate General’s (JAG) office and later by the JAG. Any disagreement would go to the secretary of war. The crucial point is that a court martial is defined by law; Roosevelt’s creation was not.

Third, the administration had to overcome the Supreme Court’s landmark ruling in Ex Parte Milligan (1866), which prohibited military tribunals from operating as long as civilian courts were open and functioning. Biddle wanted the court to either overturn Milligan or to at least find ways of “distinguishing” it.

Finally, Roosevelt’s proclamation prohibited judicial review. He told Biddle regarding the saboteurs: “I won’t give them up. ... I won’t hand them over to any United States marshal armed with a writ of habeas corpus. Understand?” The justices did not like the executive branch thumbing its nose at civilian courts. Chief Justice Harlan F. Stone put the question directly to Biddle at oral argument on July 29: “Does the attorney general challenge the jurisdiction of this court?” Biddle replied: “I do not, Mr. Chief Justice.”

Federal courts acted with extraordinary speed. On July 28, the district court rejected the appeal for a writ of habeas corpus. Over the next two days, the Supreme Court set aside a remarkable nine hours for oral argument. On July 31, it affirmed the district court’s ruling. A brief per curiam (“for the court”) merely held that the military commission was lawfully constituted, without explaining why. Six of the saboteurs were electrocuted; two received prison sentences. Over the next few months, the court had to crank out a decision justifying what it had done, finally releasing it on Oct. 29.

With the justices deeply divided, Chief Justice Stone managed to cobble together an opinion. It found that Milligan was “inapplicable” to the Nazi saboteurs, partly because Lambdin P. Milligan was not associated with the armed forces of the enemy, and that the articles of war did not prevent Roosevelt from creating his military commission. The full decision seemed to present a united court, and yet Stone readily admitted that “a majority of the full court are not agreed on the appropriate grounds for decision.” Justice William O. Douglas recalled that it was easy for the justices to agree on the per curiam, but “we almost fell far apart when it came time to write out the views.” In a careful analysis of the case, constitutional historian Michal Belknap remarked that it was “painfully obvious” that all the justices had “started with a conclusion and worked backward to find reasons justifying it.”

There were grounds to disqualify several of the justices. Justice Frank Murphy recused himself because he concluded that his service in the military reserves made it inappropriate to sit on a case involving a military tribunal. Stone’s son worked with Royall on the defense, although not on the habeas corpus proceedings. Justice Felix Frankfurter had advised Secretary of War Henry Stimson to try the saboteurs by a military commission. Justice James F. Byrnes had served as a de facto member of the Roosevelt administration for the previous seven months, working with Roosevelt and Biddle on the war effort.

Bush clearly modeled his order on Roosevelt’s 1942 proclamation, but there are important differences. Both presidents prohibited judicial review, directed that all results of a military trial be submitted to them and established a two-thirds vote of the military commission as necessary for conviction and sentencing. Roosevelt cautioned the commission to conduct a “full and fair trial.” Bush uses the identical phrase.

However, Roosevelt’s proclamation was limited to persons from “any nation at war with the United States.” The military commission, therefore, focused on a specific subgroup. Bush’s order covers a much wider audience--”any individual who is a not a United States citizen.” Any noncitizen, including resident aliens, is at risk of being detained and tried by a secret military tribunal. Furthermore, FDR looked backward at a handful of known saboteurs who had confessed; Bush looks forward to a large population of unknowns. The risk of miscalculation and error under the Bush order is high. A system of justice that depends on secret trials without a reviewing court cannot assure fairness or inspire confidence in verdicts.

President Bush needs to return to his original themes of bipartisanship and executive-legislative cooperation. He can do that by working with Congress to craft statutory standards to assure due process and constitutional legitimacy.

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Louis Fisher, a political scientist, is the author of “American Constitutional Law.”