Today in Supreme Court History: October 29, 1942

10/29/1942: Published decision in Ex Parte Quirin released. At that point, six of the saboteurs had already been electrocuted.

The Stone Court (1941-1942)

Comments

[Dan Schiavetta]

Shell v. Mississippi, 498 U.S. 1 (decided October 29, 1990): capital murder conviction reversed because definition of “especially heinous, atrocious or cruel” given to jury was too vague

Alexander v. Holmes County Board of Education, 396 U.S. 19 (decided October 29, 1969): Court attempts to end “all deliberate speed” stalling by declaring that as of now any segregated school system is per se illegal

New York v. Eno, 155 U.S. 89 (decided October 29, 1894): federal courts can’t spring someone from state jail until state appeals process on federal question has run its course

[Davy C]

Shortly after the landings, Burger and Dasch backed out of the mission. Dasch turned himself in to the Federal Bureau of Investigations. All eight conspirators were subsequently arrested and, on the orders of President Franklin Roosevelt, tried by military commission. The commission found all eight men guilty and sentenced them to death.

Seems a bit harsh to sentence to death the guy who backed out and turned himself in, isn't it? Even if his sentence was commuted to life in prison.

[taqmcg]

Burger’s sentence was reduced to life in prison. Dasch’s to 30 years. After the war they were deported to the American zone in Germany and freed.

[Dan Schiavetta]

If it wasn’t for Dasch turning himself in, the FBI would never have cracked the case. Hoover viewed immigrants with suspicion and preferred to conduct dragnets of German American communities.

On the German side the stupidity was probably intentional. Hitler had assigned the operation to General Canaris, whose Abwehr (their CIA) was a hive of anti-Hitler machinations. The project being unlikely to succeed in any case, Canaris probably made sure that failure was certain. He was later hanged in connection with the July 20 1944 plot and the Abwehr was dissolved.

[Dr. Ed 2]

There were more: https://meandermaine.com/tale/nazi-spies-in-downeast-maine/

My favorite is the two put ashore in clothing appropriate for NYC but very much *not* for rural Hancock County, Maine in November. Particularly when it was snowing...

It's the little stuff that trips spies up

[SomeGuy 2]

Spies also didn't understand the distinction between American/German English. Remember reading about a guy who, posing as an American in a captured US Army truck/uniform, was stopped at a checkpoint and said he needed more petrol for his lorry. Spy mission over.

[Sarcastr0]

"The Government argues that our more recent jurisprudence ratifies its indefinite imprisonment of a citizen within the territorial jurisdiction of federal courts. It places primary reliance upon Ex parte Quirin, 317 U.S. 1 (1942), a World War II case upholding the trial by military commission of eight German saboteurs, one of whom, Hans Haupt, was a U.S. citizen.

The case was not this Court’s finest hour. The Court upheld the commission and denied relief in a brief per curiam issued the day after oral argument concluded; a week later the Government carried out the commission’s death sentence upon six saboteurs, including Haupt. The Court eventually explained its reasoning in a written opinion issued several months later."

[Dr. Ed 2]

Gaslighto, I think you need to keep this in the perspective of the times -- while they lied to the public, in 1942 the US Government was truly terrified of German Submarines. They were sinking damn near *everything*, the bodies were floating in every morning, and I'm honestly surprised that they didn't send more spies & saboteurs than they did.

Although we will never know how many spies were then successfully exfiltrated, particularly circa 1942.

The US was then an East Coast country, and this was the closest we came to an invasion since the War of 1812. People were scared.

And courts sometimes pull in their reigns in wartime...

[Kazinski]

Has nothing to do with how terrified or not terrified we were.

There was a state of war between US and Germany, the saboteurs were fighting on Germany's side and out of uniform behind enemy lines and were subject to execution by the laws of war.

American citizenship is not a get out of jail free card, if you are fighting in the army of another country in a war you are subject to the laws of war.

[Sarcastr0]

This is a quote from a Justice Scalia dissent, for those of you too dumb to see the quotation marks.

[ReaderY]

It’s perfectly good law.

Give unlawful enemy alien combatants the rights of citizens? Why not require trials to be held for each and every individual target before every American soldier is allowed to fire a shot?

As the Court noted, at the time the constitution was ratified it was the practice to declare every enemy alien an outlaw with no legal protection and just make it open season. Internment was a humane but not constitutionally unnecessary alternative to lynching. While the law has not tested the floor, and it doesn’t seem to have been actually widely done, trial by military commission, which occurred in every American war, is well above it.

[Sarcastr0]

It's almost as though originalism has some fucked up implications.

Quirin is not perfectly good law. It is technically good law, but a lower court citing it is not going to go uncommented upon.

[Magister]

`No, no!' said the Queen. `Sentence first--verdict afterwards.'

[Drewski]

OT: CNN is reporting that, according to "the UN," Palestinians are breaking into warehouses for "needed essentials." CNN manages to imply that it is because of insufficient humanitarian aid. At no point does it question why Hamas is hoarding essential supplies that are urgently needed or whether future aid will be protected by armed guards from civilians. It also completely fails to raise questions of whether any looters are profiteering or taking non-essential supplies.

[SomeGuy 2]

Armed guards? I don’t know if you could find somebody crazy enough to A) Go to Gaza, B) With a gun, C) To guard a warehouse, D) To prevent it from being looted by desperate civilians and/or fanatical Hamas terrorists. There's a realistic chance you'll be killed by Hamas, John Q. Gaza, an errant Hamas rocket or even an Israeli air strike.

If somebody actually wants this job, I probably don’t trust them with a gun.

[Dr. Ed 2]

Assuming it isn’t the guards that are doing the looting themselves. Besides, I thought all the Hamas supplies were underground -- could this be UN stuff that the UN was too incompetent/corrupt to distribute in past months?

[SRG2]

Also OT: any betting on when the next Blackman article appears, this time defending Thomas's forgetting about the "loan"?

[Magister]

Unlike Alito, Thomas tends to approach his (more serious) ethics lapses by stonewalling rather than prattling to sympathetic journalists. With no indication of the approved talking points, my bet is that Blackman will continue to say nothing, especially given his much reduced posting (which might also explain the recent lapse in Today in Supreme Court History posts).

[David Nieporent]

Thomas tends to approach his (more serious) ethics lapses by stonewalling

That's not true. Thomas keeps using his friend Mark Paoletta to launder his defenses.

[Magister]

Hmm, I could perhaps just say that Clarence Thomas does not make directly attributed statements about these things the way Alito has; I can only recall his early statement that other justices advised him that he didn't need to report the dinners/vacations with his billionaire buddy. It may be that Blackman would amplify a direct statement but not from a surrogate, and that he has posted less recently, so I'll stand by my bet.

[jdgalt1]

Burger, Heinrich, Quirin, and Dasch landed near Long Island, New York wearing German uniforms and carrying explosives. On the night of June 17, 1942, the remaining four came ashore in similar fashion at Ponte Vedra Beach, Florida.[snip]No. In a unanimous opinion authored by Chief Justice Harlan Fisk Stone, the Court concluded that the conspirators, as spies without uniform whose purpose was sabotage, violated the law of war and were therefore unlawful enemy combatants.

Why did the Court disregard the fact that the saboteurs were in uniform?

[Dr. Ed 2]

How long did they remain in uniform?

[Noscitur a sociis]

They came ashore in uniform, then immediately changed into civilian clothing.

[Noscitur a sociis]

They came ashore in uniform, then immediately changed into civilian clothing.

[F.D. Wolf]

On this day in 1901, Leon Czolgosz was executed in New York for the assassination of President William McKinley, forty-five days after McKinley's death. Curiously, while threatening to kill the President has been a federal crime since 1917, actually killing the President was not made a federal crime until 1965, in the aftermath of the assassination of President John F. Kennedy.

[SomeGuy 2]

And after that, not a single President has been assassinated. Congress just had to make it clear that it was illegal, would-be assassins aren't psychic. Probably should have done that sooner.

[Mr. Bumble]

Is this a serious comment? Sarc meter is broken.

[BrotherMovesOn]

It's ok, everyone knows you're impaired.

[F.D. Wolf]

Beyond the symbolic importance of stating that the assassination of a President is a crime against the whole nation, as opposed to just the state in which he happened to be, as a practical matter, for the most part, it standardizes such things as the elements of the crime, rules of evidence, punishments, etc., which will vary from state to state.

(I say "for the most part", because there may still arise differences among the federal circuits, such as the proper test for an insanity defense, which was an issue in John Hinckley's trial for the attempted assassination of President Reagan.)

[Dan Schiavetta]

It is also important in establishing some of the elements of conspiracy to murder the President, and attempted murder.

[Mr. Bumble]

Well, everybody’s favorite whipping boy is back and now captcrisis has a place to post his comments again. Only thing missing is the capt’s movie reviews.

Don’t feel competent to do a review but thought I’d suggest a movie I watched last night: The Burial. Streaming on Amazon Prime and produced by Amazon and MGM.

Stars Jamie Fox and Tommy Lee Jones and a fine supporting cast. See link for more details.

https://en.wikipedia.org/wiki/The_Burial_(film)