The Charlotte News

Friday, July 31, 1942

FOUR EDITORIALS

Site Ed. Note: The excised quote of the day, perhaps fitting for the time in general, was: "My salad days, when I was green in judgment."--Shakespeare

The front page informs that the case of Ex Parte Quirin, et al., 317 US 1, was decided unanimously by eight justices of the Supreme Court in a per curiam decision, to be followed in October by a full opinion, explaining its rationale. Unfortunately, the defendants would never get to read that opinion as they would be dead within eight days of this date.

The per curiam decision read simply as follows:

In these causes motions for leave to file petitions for habeas corpus were presented to the United States District Court for the District of Columbia, which entered orders denying the motions. Motions for leave to file petitions for habeas corpus were then presented to this Court, and the merits of the applications were fully argued at the Special Term of Court convened on July 29, 1942. Counsel for petitioners subsequently filed a notice of appeal from the order of the District Court to the United States Court of Appeals for the District of Columbia, and they have perfected their appeals to that court. They have presented to this Court petitions for writs of certiorari before judgment of the United States Court of Appeals for the District of Columbia, pursuant to 28 U.S.C. 347(a), 28 U.S.C.A. 347(a). The petitions are granted. In accordance with the stipulation between counsel for petitioners and for the respondent, the papers filed and argument had in connection with the applications for leave to file petitions for habeas corpus are made applicable to the certiorari proceedings.

The Court has fully considered the questions raised in these cases and thoroughly argued at the bar, and has reached its conclusion upon them. It now announces its decision and enters its judgment in each case, in advance of the preparation of a full opinion which necessarily will require a considerable period of time for its preparation and which, when prepared, will be filed with the Clerk.

The Court holds:

(1) That the charges preferred against petitioners on which they are being tried by military commission appointed by the order of the President of July 2, 1942, allege an offense or offenses which the President is authorized to order tried before a military commission. (2) That the military commission was lawfully constituted. (3) That petitioners are held in lawful custody, for trial before the military commission, and have not shown cause for being discharged by writ of habeas corpus. The motions for leave to file petitions for writs of habeas corpus are denied. The orders of the District Court are affirmed. The mandates are directed to issue forthwith.

Mr. Justice Murphy took no part in the consideration or decision of these cases.

Chief Justice Harlan Stone delivered the opinion of the court in October. It essentially held that, pursuant to the common law tradition of the country, dating back to the founding and during the Revolution, "unlawful belligerents", that is, persons who breached the defenses of the country surreptitiously, without being in a uniform or dress with markings of a soldier, with intent to harm the defenses of the country, were subject to trial for violations of the laws of war.

Violations of the laws of war were not subject to trial in the civilian courts but only before military tribunal. Such was the case at common law and neither the Fifth nor Sixth Amendments intended to broaden the instances in which the right to jury trial attached.

Typically, the death penalty was inflicted as punishment.

Moreover, the President, in issuing a proclamation declaring such spies and saboteurs to be subject only to trial before military tribunal, exercised his constitutional authority as Commander-in-Chief and his power as executive to execute the laws of Congress, in this case a declaration of war on Germany, as well as laws proscribing acts interfering with the prosecution of the war and with the defenses and armed forces of the United States.

The Court further distinguished between these acts and acts of treason, which were subject to trial in the ordinary civilian courts, that such acts by spies and saboteurs who were not wearing the uniform of the enemy soldier were proscribed by the laws of war. A soldier in uniform captured behind the lines was to be treated as a prisoner of war; an enemy combatant out of uniform could be presumed to be a spy or saboteur and was subject to trial before a military tribunal.

Whether the unlawful belligerent was a citizen of the United States or not was deemed irrelevant by the Court. One of the eight saboteurs, Herr Haupt, was putatively a citizen of the United States, having come to the U.S. with his German parents at age five and claimed to have been naturalized thereafter. He had, however, for all intents and purposes, expatriated to Germany, the land of his birth.

The only relevant issue, however, was whether the person was an unlawful belligerent, i.e., a spy or saboteur acting for a declared enemy of the United States. In that case, the person was subject to trial in a military court and was not constitutionally entitled to trial in ordinary civilian courts.

We note parenthetically that we find the whole matter of consistent resort to the common law, that in existence and followed by the courts of the land prior to the ratification of the Constitution, as a means of divining what was intended by the Founders, to be more than a little suspect, even if consistently followed by the courts through time. It is more than a little disingenuous, is it not? to say that on the one hand we fought a Revolution to be shed of the vagaries of English law, only, once done, and having ratified a Constitution with a liberal and expansive Bill of Rights appended to it, one of the most liberal documents ever ratified by any people, to have that document become subject to the common law in existence in the colonies when King George III ruled them, common law, for its greater part, handed down from English tradition.

Was this not effectively a compromise with sin to effect some quasi-unity between the Loyalists still among the colonists at ratification and the Patriots, in the years following ratification?

Should we be constrained by that sort of precedent, founded strictly on tradition, not, strictly speaking, mentioned as an appropriate standard in the Constitution, save in the case of civil trials under the Seventh Amendment? Should pre-Revolutionary English law drive us silly to our graves as a democracy, trying at once to enjoy democratic freedom, yet constrained by laws enacted, in some cases, in England five or six or seven or even eight centuries before they wander in showing their pridefully delighted, royal faces again? Is it any wonder the law is deemed in many places, and rightly so, a ass?

The Court in Quirin adverted to Article III, Section 2:

As this Court has often recognized, it was not the purpose or effect of 2 of Article III, read in the light of the common law, to enlarge the then existing right to a jury trial. The object was to preserve unimpaired trial by jury in all those cases in which it had been recognized by the common law and in all cases of a like nature as they might arise in the future, [citation], but not to bring within the sweep of the guaranty those cases in which it was then well understood that a jury trial could not be demanded as of right.

The Fifth and Sixth Amendments, while guaranteeing the continuance of certain incidents of trial by jury which Article III, 2 had left unmentioned, did not enlarge the right to jury trial as it had been established by that Article. [Citation.] Hence petty offenses triable at common law without a jury may be tried without a jury in the federal courts, notwithstanding Article III, 2, and the Fifth and Sixth Amendments. [Citations.] Trial by jury of criminal contempts may constitutionally be dispensed with in the federal courts in those cases in which they could be tried without a jury at common law. [Citations.]

Article III, Section 2 reads in relevant part:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--...to all controversies to which the United States shall be a party;...--and between a state, or citizens thereof, and foreign states, citizens or subjects.

...The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed...

Nothing is said in that Article or in the Fifth or Sixth Amendments about preservation of the common law. The text plainly says what it says, and resort being made consistently to the common law has governed the sustenance of breath into all manner of moribund evils in the history of the republic, including most notably the sustenance of slavery against all common sense and decency, until it took a Civil War to begin the process of righting that body of wrong law by virtue of the Thirteenth, Fourteenth, and Fifteenth Amendments, and, following their ratification, another century of bloodshed fought over their meaning, before the country was finally more or less done with the attitude their contravening forces had adopted, at least insofar as official countenance of it.

Was this country brought therefore, at its worst hour, in following the common law, to a place on the moral scale any better than Nazidom, in seeking such swift and mighty justice for these eight arrested saboteurs? Should they not have been left to the civilian courts to try?--probably with the same result, but one which the process for its reaching would have been more jealously protected, at least made more subject to public scrutiny to insure such jealous protection of rights and dignity before the courts.

Yes, their possession of explosives, detonators and timers when they came ashore in Florida and Long Island assured, protestations of their defense counsel, Colonel Royall, to the contrary notwithstanding, their danger to the defenses of the country and certainly that they came to the United States for no less a purpose than to effect havoc in defense industries. But was it not the time to show that democracy had eminent superiority over the totalitarian regimes? Was there not time for justice to move through a jury trial, with all the attendant protections and assurances of individual rights?

Was this military tribunal, when weighed against its slight deterrent value to those whose only choice was to fight to the death anyway, not simply a propaganda tool useful to the Reich to suggest to the German people that they must continue the fight for homeland security lest they be tried as spies and saboteurs by the enemy upon surrender, without the accord of the enemy's vaunted, precious constitutional rights which they hold so high but which, when brought to cases, are only hauled out for show to benefit those whom they deem deserving, but never so for the loathed, lowly, oppressed German--always a victim? And isn't there a Jew on their Supreme Court?

On the one hand, a formal funeral for the U-boat crew sunk off the coast of Virginia, and burial at Hampton with full military honors; on the other, a sham trial to eight saboteurs, swift, decisive, with final punishment exacted, all in five weeks time between July 2 and August 8, 1942.

Was it justice? Was it becoming only to the enemy?

It is hard to say and hard to judge. These were not only the times which tried men's souls, but were the times which, if lost, would try their minds and bodies for times to come immemorial; indeed, for times eternal to the crack of doom, if Hitler's scientists were successful in developing their atomic bomb before the Americans now working at Los Alamos in New Mexico's desert sands, both sets seeking to harness the darker impulses of humanity beneath the yoke of mutually assured destruction at daybreak.

"Home Free", on the editorial page, once again cavils at Colonel Royall for his having misrepresented the intent of his clients.

The editorial was merely voicing the signs of the times--disgust, frustration, fear.

At the end of the day, however, Colonel Royall was only doing his duty honorably to both the law and to the Constitution, under the worst of circumstances.

Yet, again, we do, even in hindsight, have to question whether he did his clients any real service by arguing the absurdity that men, trained in sabotage and spying, who then landed in U-boats on the United States coast at night with explosives, detonators, and timers in their possession, shed their Nazi garb, donned civilian clothes and sought to blend with the civilian populace of the country, were simply seeking in the United States safe haven from Nazi Germany. He would have served a better role perhaps, both for the country and for his clients, to have taken a leaf from the defense manual of Clarence Darrow, admitted their guilt, and sought to save them from the ultimate penalty. Instead, he failed on both counts. His time thus as a petty player on the brief stage of time, a bad one.

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