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Jewish World Review Oct. 30, 2002 / 24 Mar-Cheshvan , 5763

Jonathan Turley

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Consumer Reports


'Quirin' revisited: The dark history of a military tribunal


http://www.NewsAndOpinion.com | Sixty years ago this week, the U.S. Supreme Court rendered its decision in Ex Parte Quirin, the case that is now the foundation of the Bush administration's plan for military tribunals. Despite the ubiquitous citations of Quirin in the government's briefs and public debate, the public knows little about the unusual facts that led to the decision. The real story behind Quirin and the private dealings within the U.S. Supreme Court raise troubling questions not only about the case but the court's own susceptibility to bias and even threats in wartime.

Before Sept. 11, the area of military tribunals was an arcane subject of an insular field of military law. Few people know of the long and dark history of U.S. military tribunals, including acts that would be viewed as war crimes today.

In the War of 1812, Andrew Jackson used tribunals to jail judges, lawyers and journalists critical of his autocratic measures in New Orleans. In the Civil War, tribunals were used against newspapers and political opponents challenging the Lincoln administration. In the Dakota War trials, tribunals were used to execute more than 300 Native Americans who had served as soldiers in the Dakota force.

But in the current debate, only Quirin is cited. While it was never overturned, there was much debate over its continued validity before Sept. 11. Michael Belknap, a professor at California Western School of Law, aptly referred to Quirin as "a putrid pedigree" in a recent law review article. Kenneth Royall, a former military counsel in the case, described it as a lynching. And John P. Frank, a clerk to Hugo Black at the time of Quirin, denounced the court in his 1958 book Marble Palace for acting like a "butcher shop."

A TALE OF SABOTAGE

The origins of Quirin can be traced to a 1941 plan called Operation Pastorius, which called for two teams of saboteurs to be put ashore by submarine to wreak havoc within the United States. But unbeknownst to the Nazis, two of the saboteurs, including the operation's leader, George John Dasch, did not intend to go through with the plan.

Dasch had spent 19 years in the United States and insisted that he had used the operation simply as a ruse to get out of Nazi Germany. After landing, Dasch told his colleague, Ernest Peter Burger, that he intended to reveal the operation to the FBI. Once a committed Nazi who participated in the 1932 Beer Hall putsch with Hitler, Burger had reason to agree. The Gestapo had caused his wife to miscarry during brutal interrogations.

Not long after the first boat landed at Amagansett, N.Y., just after midnight on June 13, 1942, the saboteurs were discovered by a lone Coast Guard officer. Dasch prevented the others from killing the man and, in front of them, gave him money to forget about what he saw. However, he then quietly asked the guardsman to remember his face. The next day, Dasch called the FBI and revealed the operation. Nothing happened. The following day, when Dasch suddenly appeared in Washington with $80,000 in cash, the agents finally believed him. Dasch helped the FBI quickly round up the team members after dictating a 254-page statement. Two of the prisoners proved to be naturalized Americans: Burger and Herbert Hans Haupt. J. Edgar Hoover immediately issued a press release that claimed that he had uncovered the plot. In a false account given to President Roosevelt, Hoover even changed the date of Dasch's arrest to support his lie. Roosevelt asked Congress to give Hoover a medal.

As the press heralded the FBI's "accomplishments," it became increasingly important that any trial be secret. While Roosevelt favored a military tribunal to better guarantee death sentences, some high-ranking officials wanted a secret trial for more personal reasons. An open civilian trial would have revealed the ease with which the saboteurs entered the country, the failure of the FBI to act immediately on Dasch's tip to capture the second team and the self-serving deception by Hoover.

Once the administration decided on a secret trial, however, there remained the uncertainty of how the high court would react to the circumvention of the federal courts. Roosevelt told Attorney General Francis Biddle that it was essential for the court to go along. This presidential imperative led to a series of questionable meetings with individual justices, including a highly improper ex parte meeting with Justice Felix Frankfurter on how to structure the tribunal in anticipation of a U.S. Supreme Court appeal.

Biddle warned that the president would not accept anything but total support from the court. These warnings were conveyed by Justice Owen J. Roberts to the whole court in its conference on July 29, 1942. He informed his colleagues that FDR intended to have all eight men shot if the court did not acknowledge FDR's authority, warning that they had to avoid such a "dreadful" confrontation.

By the time of the oral argument, at least three (and possibly more) justices had personal involvement in the prior development of the case. Another justice, Frank Murphy, appeared in his military uniform as a reserve Army lieutenant colonel. (He later recused himself.) One justice had a son in the military working on the case. And Justice James F. Byrnes Jr. had been working for the administration for seven months in a nearly full-time executive position while sitting on the court. Byrnes resigned after the Quirin decision (and became director of economic stabilization and later, director of war mobilization). Apparently, he planned to accept this executive-branch position while on the Quirin panel (a gross conflict by any measure).

At oral argument, it became clear that the facts would not be placed before the public. Justice Robert H. Jackson asked sarcastically why some of the men did not go to U.S. authorities if the operation was just a ruse to leave Germany: "They did not go to any agency and say, 'We got away from the Germans. Thank God we are free and we shall tell where we buried the [explosives].' " Amazingly, Royall, the defense counsel, agreed, saying "[i]f they did that, there would not have been this litigation." In reality, Dasch had done exactly what Jackson suggested he should have done, with Burger's support. While Dasch was not part of the appeal, Burger was and Royall should have corrected Jackson's statement, instead of allowing a justice to reaffirm Hoover's false account.

The court made quick work of the men and took the fairly rare step of issuing a ruling in favor of the government without an opinion.

After the brief suspension for the appellate hearing, the trial resumed on Aug. 1, 1942, in a secret proceeding that bore little resemblance to any legitimate criminal adjudication. All eight men were convicted and sentenced to death on Aug. 3. Six were executed by electric chair on Aug. 8. Burger and Dasch were sentenced to death, but later given commutations to life imprisonment and 30 years, respectively.

SALT IN THE WOUNDS

Months after the execution of the six men, the court justified its decision in Quirin, 317 U.S. 1 (1942), a process that Chief Justice Harlan Stone called "a mortification of the flesh." Behind the scenes, Frankfurter pushed his colleagues to yield to the president as a matter of patriotism. In a bizarre and disturbing memorandum, Frankfurter sent his colleagues a long hypothetical dialogue with the dead saboteurs. "F.F.'s Soliloquy" was structured as a make-believe hearing with the dead men. Frankfurter lashed the men with invectives: "You damned scoundrels have a helluvacheek to ask for a writ....You've done enough mischief already without leaving the seeds of a bitter conflict involving the President, the courts and Congress." Frankfurter informed the saboteurs that "your bodies will be rotting in lime," and told the men that the law does not apply to them and that they "will remain in...custody and be damned." He encouraged the justices not to engage in "abstract constitutional discussions," to "just relax" and leave any problems to be resolved "during peacetime."

While Frankfurter's colleagues went along, there was difficulty agreeing on the reason that they allowed the men to be executed. Stone apparently struggled to come up with a plausible argument, drafting alternative arguments that he described as "all tenable and pseudo-tenable bases for decision."

The court rendered a unanimous decision on Oct. 29, 1942, months after the executions had been carried out. Dasch and Berger were released in 1948 by President Truman and deported to Germany. Since Dasch was viewed as responsible for the deaths of his comrades, he was hounded relentlessly and repeatedly tried to return to the United States. His efforts were blocked by the very man most threatened by his account: Hoover, who relabeled him a communist and prevented Dasch from entering the country.

Ironically, despite its repeated citation, Quirin alone does not answer the current controversy over the Bush military tribunals. Even if the court treats the war on terrorism as it would a war against a nation state, the court in Quirin expressly stated that it was not ruling on the question of whether the president could create tribunals without the authority of Congress. A deeper question, however, lurks in the history of Quirin. Quirin was previously viewed as a type of period piece of the Second World War, of more interest historically than legally. It is the sister case to the court's infamous later ruling in Korematsu v. Mott, allowing internment of Japanese-Americans.

These cases revealed the court in its darkest hour; a time when the court appeared to lose either faith in, or fealty to, core constitutional guarantees. Ironically, it is a case that some members came to loathe or regret, including Frankfurter, who referred to it as "not a happy precedent."

And in 1962, Justice William Douglas wrote in reference to Quirin, "[I]t is extremely undesirable to announce a decision on the merits without an opinion accompanying it. Because once the search for the grounds...is made, sometimes those grounds crumble."

Few would have thought that from Quirin's crumbling foundation there would emerge a new and more expansive claim of executive authority. The question is whether this court will exercise the institutional and individual judgment that was so lacking in Quirin.

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JWR contributor Jonathan Turley is a law professor at George Washington University. Comment by clicking here.

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© 2002, Jonathan Turley