The World War II German saboteurs’ case and writs of certiorari before judgment by the Court of Appeals: a tale of nunc pro tunc jurisdiction.

Excerpted from Boris I. Bittker.  Constitutional Commentary, Vol. 14, 1997.

Professor David J. Danelski has recently published an excellent account and analysis of the trial by military commission of the eight German saboteurs who landed on the beaches of Long Island and Florida during World War II, and of Ex parte Quirin, in which the Supreme Court, after two days of oral argument at an unusual special session called by Chief Justice Stone, upheld the constitutionality of the military commission’s jurisdiction.(1) Like other commentators, Professor Danelski focuses primarily on the central issue in Ex parte Quirin–the constitutional power of a military commission to try persons apprehended in the United States when the federal and state courts were open and functioning. Not surprisingly, the commentators, including Professor Danelski, have given little attention to two threshold issues that were the subject of intense inquiry during the oral argument but then faded from the forensic scene.

These preliminary issues were (1) whether the petitioners in Ex parte Quirin (the would-be saboteurs) had the right to seek any remedy in the federal courts and (2, text included following excerpt) whether the Supreme Court had jurisdiction to entertain and pass on their petitions for habeas corpus. Despite the fact that President Roosevelt’s Proclamation of July 2, 1942, entitled “Denying Enemies Access to the Courts of the United States,”(2) seemed to deny the Quirin petitioners all access to the federal courts, the first issue gave the Court little trouble: both during oral arguments and in the ultimate opinion, the Court easily–but without any analysis–concluded that the petitioners could properly seek the assistance of the federal courts. The more ticklish threshold issue was whether the Supreme Court itself had jurisdiction, and it is to that question that I now turn.

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According to gossip in the corridors of the Justice Department, the White House hoped that the drama of a military trial would help to convince the public that we were really at war, and to end the civilian complacency that prevailed even in 1942, six months after the debacle at Pearl Harbor. A military trial would also make death sentences possible, whereas the most heinous statutory federal crime for which the saboteurs could be prosecuted in the federal courts was probably conspiracy to commit a federal crime under the general conspiracy ([sections] 371 of Title 18), which at that time carried only a 2-year sentence.(5) Indeed, some corridor wits sardonically speculated that a prosecution in the regular federal courts might have to charge the saboteurs with such ludicrous offenses as entering the United States without valid passports or visas, importing explosives in violation of customs regulations, and failing to register for the draft under the Selective Service Act. The latter suggestion seemed (and was of course intended to seem) especially ridiculous, but life can imitate even satirical art: One of the petitioners actually registered for the draft after his surreptitious entry into the United States and before he was taken into custody by the FBI.(6)

The corridor speculation about possible offenses may have leaked out and inspired a popular cartoonist to portray J. Edgar Hoover holding the prisoners while the Attorney General stood on a ladder in front of an array of law books, saying “You hold on to them, Edgar, and I’ll find something here that we can punish them under.”(7)

The military commission, operating in secrecy except for terse public announcements, completed hearing the evidence on Monday, July 27, 1942, and adjourned for several days so that counsel could prepare their closing arguments. On the same day, Chief Justice Stone announced that the Supreme Court would convene on Wednesday in a special session. On the Tuesday between these two events, Mr. Cox summoned me from my Lend-Lease office to the Justice Department, where he and Lloyd Cutler informed me that Colonel Kenneth Royall, chief counsel for the saboteurs (and later Secretary of the Army), needed some help with his habeas corpus applications to the Supreme Court. They also informed me, to my surprise, that I must be well versed in federal practice and procedure because I had recently completed a clerkship with Judge Jerome N. Frank of the Court of Appeals for the Second Circuit.

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Justice Frankfurter then unveiled the core of his jurisdictional issue, viz., that the 1891 legislation creating the circuit courts of appeal(28) precluded direct review of district court judgments by the Supreme Court. Colonel Royall acknowledged that Congress had the power to restrict the Supreme Court’s appellate jurisdiction, but asserted that the 1891 legislation did not apply to habeas corpus. He went to say that this issue had been settled, “almost upon the exact facts [of Ex parte Quirin]” by Exparte Yerger.(29)

But Justice Frankfurter pointed out that Ex parte Yerger had been decided before 1891. To this rejoinder, Colonel Royall responded that “the position that we must take and do take in this matter” was that the 1891 Act did not apply to habeas corpus: “[A]s a practical matter, this was all that we could do.” The practical problem, Colonel Royall explained, was that the Presidential Order establishing the military commission provides “for no review in the ordinary sense.”(30) Thus, the sentences imposed by the commission (which could include the death penalty) might be confirmed by the President and put into effect before any judicial review could be sought. (Before the trial began, President Roosevelt had said to the Attorney General “I won’t hand [the saboteurs] over to any United States marshal armed with a writ of habeas corpus Understand?”)(31) “[I]t is apparent,” Royall said, “that it would have been impossible, even in the matter of preparing papers, if nothing else, to have followed anything other than this procedure,” viz., an appeal to the Supreme Court directly from the district court’s denial of habeas corpus. Colonel Royall went on, almost plaintively, to say: “Defense counsel conceive that it is their duty to assert every right which these petitioners have to assert. They do not conceive it to be their duty to resort to anything of a dilatory nature; and this is a prompt method, if sound, of dealing with the matter.”(32)

(2.) The proclamation decreed: That all persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, and who during time of war enter or attempt to enter the United States or any territory or possession thereof, through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals; and that such persons shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceedings sought on their behalf, in the courts of the United States, or of its states, territories, and possessions, except under such regulations as the Attorney General, with the aproval of the Secretary of War, may from time to time prescribe.