Today in Supreme Court History

Today in Supreme Court History: August 1, 1942


8/1/1942: Military commissions conclude for eight nazi saboteurs. The Supreme Court upheld the constitutionality of these trials in Ex Parte Quirin.

The Stone Court (1942)

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  1. This bumbling misadventure was the only attempt by Nazi Germany to attack us.

    1. Well, except for all the U-boat sinkings, but maybe you excuse those as “defensive”. Of course, Hitler declaring war first doesn’t matter either, or all the aerial and land fighting over the next few years, but what are a few deaths among friends? Proggies are friends with dictators, right? Or is Xi not a dictator, or the Castros, or Putin, or Maduro/Chavez?

      1. Hitler was careful not to provoke American response until after he (stupidly) declared war on the U.S. after Pearl Harbor. After that, we shot at them and they shot at us. And anyone who looks at a map can tell that Germany’s acts against the U.S. were purely defensive, while the U.S.’s against Germany were nakedly aggressive.

        Of course I’m not saying Germany was in the right, or we were in the wrong, about the whole affair. My point is: if there had been no Pearl Harbor, we would have sat around watching Hitler do his worst, indefinitely. Not even finding out about the full extent of the Holocaust would have moved us. FDR gets criticized for shutting the door on fleeing Jews but in fact most Americans had the same attitude.

        1. Indeed, America First conservatives hurled all kinds of anti-Semitic attacks on FDR when he took us to war with Germany.

          1. “I tell you time and time again that I will not send your boys off to fight in a foreign war.” — FDR, re-election campaign 1940

        2. Wow…. There is so much wrong with this.

          1. Hitler declared war on the US. That’s direct provocation. For the next 6 months, German U-boats acted with near impunity up and down the Eastern Seaboard and Gulf of Mexico, sinking American shipping. Over 5000 seamen were lost, as well as 233 ships, and 22% of the entire US tanker fleet. That’s not “defensive” anymore than firebombing Dresden is “defensive”.

          1. Those were defensive measures. Remember the U.S. had also declared war on Germany. And our objective was to conquer Germany. The German objective was just to disrupt American shipping helping the Brits. They had no designs on us.

            1. I have seen wackos stretch words beyond shape many many times, but I don’t think I have seen anything to compare with calling Germany’s U-boat operations defensive. Following Armchair Lawyer’s lead, does that mean that everything we did in the Pacific was defensive, up to and including the two atomic bombs? I mean, I can look at maps too.

              1. What we did was offensive. What Germany and Japan did (in relation to us, at least) was defensive. At no point did they invade us, or have any real plans to.

                This explains the shift in power after the War. As someone put it, we suffered relatively few casualties, and walked away with the spoils. Meanwhile Europe (full of countries that had been invaded) was devastated.

                1. Pearl Harbor, Wake Island, Guam, The Philippines. The Bataan Death March. Those were all defensive? Whether or not the US should have owned imperial colonies, they were US territory.

                  Keep on digging that hole, it gets better and better.

                2. You’ve twisted the concepts of “offensive” and “defensive” beyond any definition that can realistically be defended.

                  Under your definition, we only firebombed Dresden and invaded Nazi Germany, because otherwise they would’ve used their proposed Amerika Bombers on us. So, the invasion of Nazi Germany was really “defensive”.

                  1. Hit;er wasn’t planning to be ready for war until 1943 or so — and had he been able to spend those extra years, he’d have had the Amerika Bomber and a few other things.

                    Rumor has it that he didn’t get the atom bomb because one of his top scientists made a simple arithmetic mistake calculating the weight of heavy water.

                    Although I have long wondered if Hitler really was worse than Stalin — if Europe would have been better off with Hitler beating Stalin.

                    1. Europe probably would have been better off with Hitler beating Stalin, because we’d still have beaten Hitler, and wouldn’t have had Stalin around as a nominal ally.

                    2. This is why a utilitarian take on history ends in becoming a realpolitik monster.

                      Let the Holocaust go for a while longer, it’d be better for Europe as a whole.

                    3. I wasn’t assuming Hitler beating Stalin would imply the war lasting longer. Either way, Hitler was going to come out of it exhausted.

                      And Stalin falling would have probably saved a lot of lives in the USSR, don’t forget.

                    4. As expected, you make a pure utilitarian argument.

                      That’s how you get Vietnam. And firebombing Tokyo.

                3. I wonder how far this Newspeak redefinition can carry its new weight. Bull Connor must have been acing defensively with his police dogs and fire hoses. Lenin and Stalin in the October Revolution, Genghis Kahn. G. Washington and his slave-owning cohorts must have been acting defensively when they bought their slaves, Jefferson when he may have screwed one of his, and of course the original African enslavers. King Herod of course, and Pharaoh. Heck, let’s forgive the snake too!

            2. As the following set of exchanges shows,
              your post here is just wacko.
              “They had no designs on us” in the very short run.

        3. FDR had already made the commitment to aid Britain with everything he could prior to Pearl Harbor, but it was clear he didn’t have the votes in Congress for a declaration of war, the primary reason being that we had just gone to war, and not a minor war, 22 years earlier with the same combatants on either side.
          There was a lot of sentiment against getting involved everytime there is European land war.

          And while there was no lack of antisemitism in the US then, it wasn’t anti-Tutsi sentiment that kept Bill Clinton from sending troops to Rwanda, or anti-Uighar sentiment that keeps us from taking firmer steps in western China. The situation there isn’t markedly different than Germany and the Jews in 1940.

      2. I guess one can forgive the historical amnesia/ignorance in this comment re: things like America First, Hayek-Pinochet, Jeanne Kirkpatrick, etc., but the eliding of the quite recent Trump chumming it up with Putin, Erdogan, Saud, Jong-il, etc., crosses the line into chutzpah.

        Also, as someone who worked with the Perot ‘We the People’ movement to fight MNF status for China, probably the last meaningful attempt to stand up to them, I remember quite a few ‘progs’ with Free Tibet bumper stickers but not many conservatives. The idea that conservatives are standing between us and China is a hoot,.

        1. The idea that conservatives “were” standing between us and China is a hoot. In the present tense? Things change.

        2. “quite a few ‘progs’ with Free Tibet bumper stickers ”

          That sure showed the ChiComs!

    2. “This bumbling misadventure was the only attempt by Nazi Germany to attack us.”

      I’m not so sure — I don’t know how many of these incidents were dealt with by armed civilians.

      And there was real Nazi espionage helping the U boats — initially, they simply bought copies of the shipping news and relayed information offshore.

    3. Well you know, apart from the sinking of the USS Ruben James, the u-boat attacks (that missed) on the USS Texas and USS Greer, the u-boat torpedo attack on the USS Kearny (that hit) and numerous other such acts prior to December 11, 1941. But apart from that, this was the “only attack”.

  2. Quirin is a really horrendous example of an executive power grab. These guys could OBVIOUSLY have been tried in civilian court, and would have been swiftly convicted. There was ZERO reason for FDR to do what he did, except to show that he could.

    FDR was a great President in many ways, but he had some real dictatorial tendencies (see also Japanese Internment). And since there’s a lot of revisionist history about court packing, I would suggest it should be seen in this light. FDR’s solution to a coordinate branch checking his power was to run all over it. It was his Achilles heel- he wanted absolute power.

    1. The nation’s worst depression ( –> court packing) and a World War ( –> Japanese internment, In re Quinn. As one writer put it, this was “no ordinary time”. In ordinary times I don’t think he would have reached so much. And in similar situations I think most politicians would.

      1. If most politicians would, that’s an indictment of most politicians.

        Quirin, as I said, is ridiculous. There’s zero reason not to just try them before a jury in a US court.

        And court packing wasn’t a response to the Depression. It was a response to the Court saving Roosevelt from himself, by invalidating one of the single dumbest statutes in American history, the National Industrial Recovery Act. Roosevelt was pissed because he didn’t think SCOTUS should have veto power over his dictates, not because he was saving the country from Depression.

        1. Wait a minute. Court packing was not a response to any one case. Consider the hot oil case; Alton Railroad; Carter Coal; U.S. v. Butler; and a whole series of Supreme Court decisions against state working conditions regulations. At stake during 1937 were the Wagner Act and Social Security. There were plenty of good reasons, not at all tied up with the NRA, for the Administration to put pressure on the Supreme Court.

          Besides, Schechter Poultry was 9-0, with Brandeis joining the majority and informally making it clear that the NRA was a terrible mistake.

          That’s not to say that court packing was a good idea — it wasn’t — or to deny that way too much of the impetus for court packing was FDR’s personal desire for unchecked power. The actual proposal, to lighten the Justices’ allegedly excessive workload by appointing more Justices, was transparently insincere. Moderates and liberals who had had some trust in Roosevelt often lost that trust.

          But we can’t, or at least we shouldn’t, attribute court packing to FDR’s resentment over having lost the Schechter Poultry case. A whole lot of things, including the 1936 elections, happened between then and the introduction of the court packing bill.

          1. No, it wasn’t just the Poultry case. It was just generally the Supreme court’s refusal to roll over, play dead, and let FDR do whatever he wanted, Constitution be damned.

            There were a lot of reasons for the Court packing threat, but I wouldn’t say any of them were good reasons. Those decisions only look a bit extreme to some people today, because it’s nearly a century since the ‘switch in time’, and people today are somewhat used to the idea that constitutional limits on federal power are meaningless.

            So all those decisions meaningfully limiting the federal government look kind of shocking from a modern perspective. But they were perfectly reasonable given the way the Constitution was actually supposed to be interpreted.

    2. Trying the saboteurs in open court would have been a disastrous mistake. Hitler would have found out how incompetent the FBI was, that the only reason the saboteurs were caught was that one of them (identified at trial) lost his nerve and turned himself in. Before the next batch of saboteurs was sent out, they would see a film of the family members of the first stool pigeon choking to death slowly and painfully on piano wire. They would learn that the legalistic USA would be too stupid to protect them if they wanted to change their minds.

      (2) Nevertheless, the mute trial offended traditional norms of justice. Better (and quite legal) would have been a secret court martial.

      1. That’s completely silly. Testimony as to why they were caught wouldn’t even come in. And Hitler didn’t have some huge reserve of saboteurs anyway.

        1. It wasn’t even that as much as — other than a few things like power lines, the most effective Nazi sabotage was the U-boat.

          Gasoline rationing had to be imposed because they sunk so many coastal tankers — circa 1940 a LOT more products were transported by water than today.

    3. “OBVIOUSLY have been tried in civilian court”


      They were soldiers of a hostile foreign power acting secretly without uniforms during wartime. Long, long history of court-martials for such men.

      Just about no history of trying in civilian courts for wartime acts.

    4. Look, if someone joins a foreign enemy army at war against us, then they are signing a waiver allowing themselves to be treated like any other foreign soldier.

      Should we have tried to identify any other American citizens among the Nazi armies at D-Day, Battle of the Bulge, conducted a census of American citizens before Hiroshima and Nagasaki?

      When you are at war, you need to focus on fighting the war against the enemy, regardless of where they were born.

      The Japanese internment was far different because their was absolutely no evidence we were interning enemies.

  3. “These guys could OBVIOUSLY have been tried in civilian court, and would have been swiftly convicted.”

    Do not forget that bodies — bodies of American merchant mariners — were floating in all along the coastline. Often not much more than a torso in a life vest, but bodies nonetheless. And everyone knew this.

    Yes, they’d have been convicted — but I think that doing that was tactically stupid. I have always wondered why FDR didn’t simply make them disappear into some secure facility of the era and keep them as a potential intelligence resource.

    1. Because he wanted to prove to the world that he had the legal right to kill anyone he wanted to.

      1. Just like BHO did with the drone program.

      2. Well, maybe, if you treat the first wave of saboteurs with restraint, then it’s only going to encourage the next wave, or worse set a precedent if it really gets out of hand that will tie your hands for the whole war.

        I do question why there wasn’t mercy shown to the one or two that turned themselves in and gave up the others.

  4. I wrote about the history of American military commissions during an Intel & NatSec law class some years ago. Here’s what I said about the circumstances surrounding Quirin:

    Six months after the Japanese attacks on Pearl Harbor, eight Nazi would-be saboteurs (including two American citizens) divided into two teams of four were inserted by submarine into Amagansett, New York, and Ponte Vedra Beach, Florida, and were all subsequently captured by the Federal Bureau of Investigation (FBI) within about two weeks of coming ashore. While the German agents ultimately failed in their mission of sabotaging various American economic targets, they succeeded in their secondary objective of “spreading a wave of terror” by shocking the public and “[bringing] the war to the American home front.” Remarkably similar to the atmosphere following Lincoln’s assassination, many American public figures and institutions seemingly called for the captured agents’ extrajudicial killings, with “penalty first and trial second.” For instance, Senator Tom Connally (the powerful chairman of the Senate Foreign Relations Committee), said, “The severest penalty should be inflicted on these men, and they should be promptly tried,”, and the New York Times reported that “Americans everywhere” were demanding the death penalty, writing “Americans [want] to hear the roar of rifles in the hands of a firing squad.” President Roosevelt was thus under enormous pressure from the public and political allies and foes alike to quickly bring the matter to what was considered to be a foregone conclusion. In a letter sent to the Attorney General on June 30, Roosevelt acknowledged that he “considered the saboteurs to be guilty” and went on to say that “the death penalty is called for.”

    Roosevelt’s Attorney General, Francis Biddle, was placed in perhaps an even less enviable position than the president. While the entire nation had seemingly already rendered both a verdict and a sentence, Biddle recognized that while the agents had clearly intended to be saboteurs, they had nevertheless been captured before they had been able to actually sabotage anything. Additionally, they could not be tried as spies since their mission was not intelligence collection, and they had not therefore “come within [the United States] for unauthorized purposes.” These two inconvenient facts left the Attorney General with anything but a guaranteed win in civilian court or even a regularly constituted court-martial (which was Roosevelt’s preference).

    Instead, the Attorney General succumbed to the temptation of recommending Roosevelt convene a military commission, recognizing the various “judicial shortcuts” and other prosecutorial and policy benefits when compared to regular civilian or military courts. Roosevelt agreed, and when he issued his proclamation convening the military commission, it seriously deviated from regular courts-martial “even in that era” in procedure, rights granted the accused, rules of evidence, and post-trial review. For instance, the president’s proclamation “allowed conviction and sentencing by a two-thirds vote” despite being convened in a capital case, and all post-trial review was denied with the exception that “the record of the trial, including any judgment or sentence, would be transmitted directly to the President for action thereon.” The agents were summarily tried, convicted, and sentenced to death (although the two who had turned themselves in and alerted the FBI to the plot had their death sentences commuted by Roosevelt to long terms of imprisonment).

    1. Some people are idiots and think trials are for chumps.

      The legal system isn’t supposed to listen to them. And a President who didn’t want to be a dictator wouldn’t have.

  5. I didn’t know much about this case except that supposedly it provided precedent for W’s prosecution of war on terror enemy combatants. I also heard that had the Germans been captured in uniform, they would have been POWs, not spies, and so would not have been executed.

  6. We are sick of the lawyer filth embedded with our warriors, crushing their ability to kill the enemy. These lawyer Commissars of Political Correctness should be named, tried, and summarily executed as servants of the enemy. Shoot them in the head in the court basement. Thanks to the lawyer filth profession we were chased out of 6 countries by Stone Age savages with $50 weapons.

  7. Should have been tried like the Rosenbergs, like Nuremberg, like Eichmann … (the circumstances of Eichmann were somewhat extra judicial but they actually had a trial so …)

    Like even in situations of great national strife liberal nations try to hold fair trials. The USA prides itself on it. And it is good that the trials of Russian spies and traitors in the USA they were held under, while far from perfect, somewhat more fair circumstances.

    Unfortunately that hasn’t improved with Arab terrorists, but what can you do.

    1. They got a fair trial, it was just before military officers.

      Only 6 of 8 were executed.

  8. I find it weird that we will send spies and saboteurs into enemy territory, but then execute enemy spies when we catch them.

    That seems weird to me from a law of war standpoint. Why do we execute individuals for carrying out the orders we routinely give to our own soldiers?

    Or is James Bond a lie?

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