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) 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.
THE SUPREME COURT'S JURISDICTION TO ENTERTAIN PETITIONS FOR HABEAS CORPUS
The second threshold question in Ex parte Quirin was whether the Supreme Court had jurisdiction to pass on the petitioners' applications for habeas corpus. If the Court had found it necessary to answer this question at the end of the first day of oral argument, the answer (as explained below) would have been "no." But its jurisdiction was established, retroactively so to speak, by a procedural episode that occurred between the first and second days of argument. This switch in time led Professor Robert E. Cushman, the author of the first published scholarly analysis of Ex parte Quirin, to observe that "the Court's jurisdiction caught up with the Court just at the finish line."(3)
Because I was personally involved in this race to the courthouse steps, I am shifting to the first person singular for the rest of this narrative account.(4)
I arrived in Washington in the summer of 1942, one year out of law school, to join the legal staff of the Lend-Lease Administration, whose general counsel was Oscar S. Cox. He was an energetic, resourceful, and self-assured lawyer, who had come to the attention of the White House (especially Harry Hopkins) and of Attorney General Francis Biddle as a principal draftsman of the Lend-Lease Act. His skills led quickly to his additional appointment as Assistant Solicitor General, who in those days was responsible for drafting two categories of documents: the Executive Orders by which President Roosevelt created, reshuffled, and reorganized the myriad of war-time agencies, and the Opinions of the Attorney General, which were especially important in interpreting the Second War Powers Act and other statutes affecting military procurement and other wartime activities. Mr. Cox held his Lend-Lease and Justice Department posts concurrently, and those wide responsibilities were augmented by still a third appointment, as general counsel for the Office of Emergency Management, a kind of executive holding company for the wartime operating agencies. His glittering reputation, enhanced by the reputations of his associates (including George Ball, Lloyd Cutler, Myres MacDougal, and Eugene Rostow), was a magnet for ambitious younger lawyers, especially graduates of Yale, Mr. Cox's own school.
On reporting for work, I was greeted briefly by Mr. Cox, but then saw little of him in the Lend-Lease offices. This was because he was almost wholly absorbed in preparing the legal basis for the prosecution of the eight saboteurs and then in assisting Mr. Biddle in the trial before the military commission. These functions did not fit within the job descriptions of any of Cox's three official posts, but they reflected his reputation as a can-do lawyer who brought imagination and verve to any project that attracted his attention. In contrast to the Criminal Division of the Justice Department, which questioned the constitutionality and wisdom of a military trial when the federal courts were open and functioning normally, Mr. Cox vigorously supported the military route.
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.
I was given no time to disclaim knowledge of such matters, or to explain that the very few procedural and jurisdictional issues arising during my clerkship had been brought to the court's attention by counsel. Moreover, all I remembered about federal jurisdiction from my first-year course in civil procedure was that diversity jurisdiction was an antiquated procedural device exploited by wicked corporations to make life difficult for widows and orphans whose breadwinners had died in industrial accidents. There were obviously scores of experts in other offices of the Justice Department who knew more about federal jurisdiction than I; indeed, the real challenge would have been to find anyone who knew less. But I was already familiar with Mr. Cox's view that anything an expert could do, his staff could do better, so I demurred not, and went whistling in the dark to Colonel Royall.
When I reported to Colonel Royall, my dismay deepened. He …