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Military Trials Have Roots in Nazi Case

Court: Secret tribunals, such as those involving eight German soldiers in 1942, may be held again.


WASHINGTON — On July 8, 1942, as Nazi armies were driving across southern Russia, a military trial got underway on the fifth floor of the Justice Department building in Washington.

The defendants were eight German soldiers who had been dropped off American shores by submarines three weeks earlier. Four came ashore at Amagansett Beach on Long Island, N.Y., and four at Ponte Vedra Beach in Florida.

All of them had lived in the United States and spoke fluent English. They had been trained in sabotage at a school near Berlin. They had an ample supply of U.S. currency, as well as explosives and detonators. Their job was to damage U.S. weapon factories.

Two of them defected, however. After spending a few days in New York City and lots of their money, they took a train to Washington, checked into the Mayflower Hotel and called the FBI. With their help, the U.S. authorities quickly apprehended the other six. Within a month, they were found guilty and electrocuted; the defectors were imprisoned.

The brief, bungled mission of the Nazi saboteurs is a footnote to World War II history, but it now looms large in U.S. law: It established the precedent for secret military trials under certain circumstances.

Last week, Bush administration officials said the case gave the president the power to hold closed military trials for foreign terrorists, whether they are arrested here or captured overseas.

But the Nazis' case is not the only--or even the best-known--precedent on military tribunals, and conflicts between it and a Civil War-era case may set off a legal showdown if a suspected terrorist is arrested in the United States and turned over to a military court.

When the U.S. Supreme Court met in special session in the summer of 1942, it rejected the Nazis' claim that they should be tried in the open, in a U.S. court. Its opinion drew a distinction between "lawful combatants and unlawful combatants" during wartime.

"Lawful combatants are subject to capture and detention as prisoners of war," the court said. "Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.

"These petitioners," the court said of the Germans, "are charged with an offense against the law of war which the Constitution does not require to be tried by a jury."

President Bush's order, picking up the language of the 1942 case, describes terrorism as a "violation of the laws of war."

Vice President Dick Cheney, defending the order, said foreign terrorists who come here are neither citizens entitled to constitutional rights nor "lawful combatants" protected under the rules of war.

"There's ample precedent for" the use of military tribunals, Cheney said, citing the Nazis' case. "The basic proposition here is that somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of innocent Americans, men, women and children, is not a lawful combatant."

Use of Such Courts Overturned in 1800s

But in an earlier case, just after the Civil War, the Supreme Court unanimously overturned the use of military courts to try several Confederate sympathizers in Indiana.

Lambdin P. Milligan, a lawyer and a politically active Democrat, had joined a secret group in 1863 called Sons of Liberty. Some of its members talked of freeing Confederate prisoners held in Illinois and Indiana.

He and the others were arrested, tried by a military court and sentenced to die for conspiracy and treason. But Milligan filed a writ of habeas corpus with the high court, arguing that the use of military tribunals to try civilians was unconstitutional. The Supreme Court blocked the executions and agreed to hear the case.

The justices waited until the war, which they termed the "wicked rebellion," had ended, and then issued a broad pronouncement on the importance of preserving civil liberties.

"The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances," the court said in Milligan's case.

The president has no right or power to use military trials, the justices said, "where the courts are open and their process unobstructed."

The 1867 opinion, though written by Abraham Lincoln's former law partner and campaign manager, Justice David Davis, implicitly rebuked the late president for setting up the military courts.

Ever since, the Milligan case has been cited in arguing that constitutional rights cannot be waived if the courts are open for business.

It caused something of a problem during the Nazis' case in 1942. President Franklin D. Roosevelt's attorney general, Francis Biddle, described Milligan as a "bad case" that should not be followed.

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