Military Trials Have Roots in Nazi Case

On July 8, 1942, as Nazi armies were driving across southern Russia, a military trial got underway on the fifth floor of the Justice Department building in Washington.

The defendants were eight German soldiers who had been dropped off American shores by submarines three weeks earlier. Four came ashore at Amagansett Beach on Long Island, N.Y., and four at Ponte Vedra Beach in Florida.

All of them had lived in the United States and spoke fluent English. They had been trained in sabotage at a school near Berlin. They had an ample supply of U.S. currency, as well as explosives and detonators. Their job was to damage U.S. weapon factories.

Two of them defected, however. After spending a few days in New York City and lots of their money, they took a train to Washington, checked into the Mayflower Hotel and called the FBI. With their help, the U.S. authorities quickly apprehended the other six. Within a month, they were found guilty and electrocuted; the defectors were imprisoned.

The brief, bungled mission of the Nazi saboteurs is a footnote to World War II history, but it now looms large in U.S. law: It established the precedent for secret military trials under certain circumstances.

Last week, Bush administration officials said the case gave the president the power to hold closed military trials for foreign terrorists, whether they are arrested here or captured overseas.

But the Nazis’ case is not the only--or even the best-known--precedent on military tribunals, and conflicts between it and a Civil War-era case may set off a legal showdown if a suspected terrorist is arrested in the United States and turned over to a military court.

When the U.S. Supreme Court met in special session in the summer of 1942, it rejected the Nazis’ claim that they should be tried in the open, in a U.S. court. Its opinion drew a distinction between “lawful combatants and unlawful combatants” during wartime.

“Lawful combatants are subject to capture and detention as prisoners of war,” the court said. “Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.

“These petitioners,” the court said of the Germans, “are charged with an offense against the law of war which the Constitution does not require to be tried by a jury.”

President Bush’s order, picking up the language of the 1942 case, describes terrorism as a “violation of the laws of war.”

Vice President Dick Cheney, defending the order, said foreign terrorists who come here are neither citizens entitled to constitutional rights nor “lawful combatants” protected under the rules of war.

“There’s ample precedent for” the use of military tribunals, Cheney said, citing the Nazis’ case. “The basic proposition here is that somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of innocent Americans, men, women and children, is not a lawful combatant.”

Use of Such Courts Overturned in 1800s

But in an earlier case, just after the Civil War, the Supreme Court unanimously overturned the use of military courts to try several Confederate sympathizers in Indiana.

Lambdin P. Milligan, a lawyer and a politically active Democrat, had joined a secret group in 1863 called Sons of Liberty. Some of its members talked of freeing Confederate prisoners held in Illinois and Indiana.

He and the others were arrested, tried by a military court and sentenced to die for conspiracy and treason. But Milligan filed a writ of habeas corpus with the high court, arguing that the use of military tribunals to try civilians was unconstitutional. The Supreme Court blocked the executions and agreed to hear the case.

The justices waited until the war, which they termed the “wicked rebellion,” had ended, and then issued a broad pronouncement on the importance of preserving civil liberties.

“The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances,” the court said in Milligan’s case.

The president has no right or power to use military trials, the justices said, “where the courts are open and their process unobstructed.”

The 1867 opinion, though written by Abraham Lincoln’s former law partner and campaign manager, Justice David Davis, implicitly rebuked the late president for setting up the military courts.

Ever since, the Milligan case has been cited in arguing that constitutional rights cannot be waived if the courts are open for business.

It caused something of a problem during the Nazis’ case in 1942. President Franklin D. Roosevelt’s attorney general, Francis Biddle, described Milligan as a “bad case” that should not be followed.

The Supreme Court justices at that time agreed and said the Milligan ruling turned on the fact that he was a citizen and resident of Indiana, not an “enemy belligerent.”

Nonetheless, conflicts between Milligan and the Nazis’ case remain, especially when applied in a modern case of terrorism.

For example, if an immigrant in the United States, who perhaps entered the country legally, is charged as a suspected terrorist, would he be considered an “enemy belligerent” under the Nazi precedent, even though he’s not a formal member of an enemy army and Congress has not formally declared war against the Al Qaeda terrorist group or Afghanistan?

Or would he be entitled to a jury trial under the terms of Milligan, which refers to “all classes of men” and never distinguishes nationality as a factor?

As a result, Bush’s directive will likely face a legal challenge if terrorists are tried in military tribunals.

“This is likely to end up in court, even though the president says he can do this on his own. And it’s a very close call,” said Washington attorney Philip Lacovara, who has studied the issue. “I support the concept of military tribunals for some types of terrorists,” he said, especially Al Qaeda leaders who are captured overseas.

Former Atty. Gen. William P. Barr, who first proposed the idea of military tribunals to the Bush White House, sees no problem with their legality.

“We are in a state of armed conflict, and we are dealing with an organization that has declared war on us,” said Barr, who served under former President Bush.

Barr said he devised the idea of using military trials for the terrorists who brought down Pan Am Flight 103 over Scotland in 1988--if they were captured.

By coincidence, he was then working in the same Justice Department fifth-floor office where the Nazis’ trial was held. A plaque on the office wall memorializes the event.

He later abandoned the idea because the Scots do not permit the death penalty. But his legal research did not go to waste.

After the Sept. 11 terrorist attacks, Barr contacted friends in the White House counsel’s office and the Justice Department to suggest that they take a new look at military tribunals.

U.S. Likely to ‘Be Very Careful’ in Using Rule

Bush issued his directive Tuesday permitting the “trial of certain noncitizens in the war against terrorism.”

“My view is the administration will be very careful as to whom this is applied to,” Barr said.

Lloyd N. Cutler, white-haired eminence of the Washington legal establishment, has an even more personal interest in the Nazi saboteur case. He was a government lawyer in 1942 and became the junior member of the prosecution team.

J. Edgar Hoover, the publicity-conscious FBI director, “had announced to the world that his men had captured these fellows, as if the FBI had been on the beach when they arrived in their little rubber boats,” Cutler recalled. “Actually, they had called from the Mayflower [Hotel], and it took the FBI four hours to get over there.”

While the trial was held behind closed doors, reporters were briefed every day on its progress, he noted.

The prosecution team consisted of 10 lawyers, he said. The eight Nazis were represented by one: Col. Kenneth Royall. He said the saboteurs had signed up for the mission “as a means of escaping from Germany.”

The Army officers who acted as judges did not buy the Nazis’ story and found them guilty.

“I’d say the Supreme Court was probably right to uphold it as they did. These fellows violated the laws of war,” said Cutler, who was White House counsel to Presidents Carter and Clinton.

Six of the Nazis were executed Aug. 8, 1942. The two defectors were sent to prison.

The Supreme Court’s opinion in their case, known as Quirin after one of the Nazis, was not issued until several months later.

In upholding the military trials for the Nazis, the justices noted that Congress had declared war on Germany and authorized the establishment of military commissions to try war cases.

“It is unnecessary for present purposes to determine to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation,” the court said then.

Bush issued his directive as a “military order,” without seeking approval from Congress.

Special military tribunals have not been used by the United States since World War II, although they were considered during the Korean and Vietnam wars, said University of Houston law professor Jordan Paust.

He said the U.S. military could try Osama bin Laden or his cohorts if they are captured in Afghanistan.

“You can set up a military tribunal in occupied territory when we’re at war,” he said. “But under Milligan, you also have to ask if the regular courts are available. So I don’t think the president has the authority to set up a military commission in New York or Washington.”

If Bush orders a terrorist to be tried in a military court in the United States, the case is likely to go to the Supreme Court.

Chief Justice William H. Rehnquist is something of an expert on the subject. In 1998, he published a book called “All the Laws but One: Civil Liberties in Wartime,” which recounted the Milligan case at length. He also noted the case of the Nazi saboteurs.

But the book offers only hints, not firm clues, as to how Rehnquist might view such a case if it came before the court today.

With each war, Americans are more protective of civil liberties, he concluded, less willing to abandon constitutional rights for an alleged emergency. But unquestionably, wartime is different, and sometimes the law is bent a bit. He quotes FDR’s Atty. Gen. Biddle as saying, “The Constitution has not greatly bothered any wartime president.”