Presidents, War, and The Constitution
15 February 2013
The Constitutionality of Military Tribunals
In June, 1942 eight German saboteurs landed on U.S. soil in Long Beach, New York. The mission of these German soldiers was to hamper the American war effort by destroying war factories, bridges, and other facilities used in the production of wartime goods. Before the soldiers had time to carry out any of their plans, George Dasch, one of the soldiers, turned himself into the FBI, leading to the capture of all eight German saboteurs. President Roosevelt ordered the men to be tried before a military tribunal, which sentenced the eight men to death. The jurisdiction of the military tribunal was challenged in the Supreme Court and was properly upheld under the basis of the Articles of War, Law of War, and Law of Nations.
The controversy in this case is not about whether or not these men should have been tried, but more in which court should they have been tried. The FBI’s original plans for the German soldiers, all of who had lived in the United States prior to the war and one of which was a full fledged citizen of the United States, was to try them in a civil court. The problem the government was confronted with in this approach was that charges of “attempted sabotage” or “conspiracy to commit crimes” were the only charges they would be able to pursue against the soldiers. As Attorney General Francis Biddle pointed out, the former would likely not have been upheld in a civilian court “on the ground that the preparations and landings were not close enough to the planned act of sabotage to constitute attempt” (1). He likened the situation to a man buying a gun with the intent to murder someone but never acting upon such beliefs. The latter, which would more likely result in a conviction, carried only a maximum penalty of three years imprisonment. The government’s primary fear was that if the saboteurs got off with a slap on the wrist (three year sentence), the Germans would not be dissuaded from sending more spies. A harsh sentence, it was assumed, would deter the Germans from attempting such missions again. It can thus be seen that a necessity did exist for the government to pursue trial by military commission, but the question remains: did they have justification for doing so?
First, the standing of the prisoners must be addressed. When the soldiers arrived on U.S. soil they wore full German uniforms so as to insure the rights of prisoners of war if they were to be captured. However, upon arrival, they discarded their uniforms in place of civilian clothing in order to blend into their surroundings. Once they had shed their military uniforms, the German spies instantly forfeited their rights as prisoners of war. To qualify as a POW (prisoner of war) under The Third Geneva Convention, soldiers must bear a uniform, badge, or distinct marking. The German spies did not, and were thus denied POW status.
The next piece that the court considered was whether or not the soldiers were “entitled to the due process of law” (4). The answer for most of the soldiers was a resounding “no”, as non-citizens of the United States are not entitled to the rights provided by the constitution. This decision became slightly trickier when considering the rights of the soldier that was, in fact, a full-fledged American citizen.
The court cited the Law of War in its answer saying,
“Citizens of the United States who associate themselves with the military arm of an enemy government, and with its aid, guidance, and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war.” (1) The citizen of the United States waived his constitutional rights by acting as an enemy belligerent. It should come as no shock then that he was not entitled to, nor was he given access to the due process of law. It is thus implicit that the government had the...
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