Political Football or Legal Quagmire [Reader Post]

The trial of Guantanamo Terrorists has been in legal turmoil for years and will doubtless be milked by the Obama Administration for every political advantage possible; but because of Roosevelt’s heavy handed actions during World War II, the Obama political maneuvering may have unintended consequences.

In 1942 eight Germans, all with extensive time spent previously in the US including George Dasche who became an American citizen after serving in the US Army, were trained for three weeks as saboteurs by the National Socialists, after a two week interval of relaxation they were divided into two teams of four and transported in two different submarines for America. Dasche’s group landed on Long Island, the other group landed in Florida.

The Long Island group was spotted and hailed by a Coast Guard patrolman, they tried to bribe him with several hundred dollars, he refused the bribe and phoned in an alert. The saboteurs buried their explosives and uniforms and left for New York City.

Upon arrival in New York City, Dasche phoned the FBI and tried to turn the group in, the FBI thought his call was a hoax and ignored him.

A short time later, the uniforms and explosives were uncovered on the beach in Long Island; thus a national manhunt ensued for National Socialist saboteurs.

After being rebuffed by the New York FBI office, Dasche drove to Washington DC and turned himself in to the FBI headquarters. Again he was considered a crank until he opened a suit case with eighty thousand dollars in it.

With the assistance of both Dasche and coconspirator Burger, all eight National Socialist saboteurs were arrested. Both Dasche and Burger maintained they were promised immunity by their cooperation with the FBI. In the end, all the conspirators cooperated with authorities and freely admitted that they contracted to disrupt American war production with explosives; although they didn’t actually engage in espionage, they maintained they all agreed to the mission to escape the National Socialists.

Because of the legal situation of the time, it is safe to assume that FDR decided to try the National Socialist saboteurs by military tribunal rather than a civilian court because of two main reasons.

First: At that time, buying a weapon to commit a crime was not a crime. An effort to use the weapon had to be exercised before a crime was committed. Therefore, even though the saboteurs had a huge supply of explosives, they had made no effort to employ them. Thus no crime had been committed.

Second: A military tribunal could prosecute the more serious crime of enemy combatants behind enemy lines in civilian clothes. Under military law this was a capital offence.

FDR decided to use the military tribunal to insure convictions and executions. In twenty days the men were tried, convicted, and executed except for Burger and Dasche, they were given life and thirty years respectively, the tribunal was halted for three days while the Supreme Court heard an argument challenging the jurisdiction of the tribunals.

The Supreme Court issued a per curiant opinion (an unsigned opinion) affirming the tribunal’s jurisdiction.

The defense maintained that the saboteurs had not undertaken the effort to use the explosives and their efforts were merely a ploy to escape the National Socialism of Germany. The eight generals hearing their case were unconvinced and found them all guilty and sentenced the six to death and they were executed in the electric chair within six hours of the verdict being delivered.

Justice Stone began drafting the Supreme Court’s decision after the executions had been carried out. Stone felt that it was imperative that a unanimous decision was necessary because of the gravity of the crimes, not to mention the fact that the executions were almost simultaneous with the convictions.

Known as the Ex Parte Quirin decision it is not regarded as one of the highlights of the Supreme Court’s Legacy, despite being well received publicly. The decision was reached on July 31, 1942, but did not release its decision until October 29, 1942.

Justice Frankfurter asked Frederick Weiner, an expert on military justice, to provide his opinion. Weiner concluded that the court had been “careless and uninformed (in its) handling of the Articles of War.” Of course this is the area that should have been the primary focus of the decision.

FDR thought he was sending a clear message to Hitler and the National Socialists, yet he ended up leaving a murky precedent for the future.

The Quirin decision maintained legislation authorizing military commissions for the types of offences in question; however, in the time line of Quirin there was a declaration of war. On November 13, 2001, the military was ordered to try suspected terrorists by military tribunals.

President Bush relied on a joint resolution of congress to serve as a replacement for a formal declaration of war along with two provisions of the Uniform Code of Military Justice, successor to the Articles of War.

Consequently, prisoners in the War on Terrorism were to denied protection granted by the Geneva Convention, ratified in 1949 and now considered to be a part of United States municipal law in accordance with Article 6 paragraph 2 of the Constitution, (the Supremacy Clause).

In addition the United States Supreme Court in Handan vs. Rumsfeld ruled that common paragraph 2 of the Constitution and Article 3 of the Geneva Convention applies to detainees in the war on Terror and that military tribunals are in violation of United States and International Law.

Because treaties become law in our country, and because of procedural sloppiness in the past, we are trying men who have admitted planning the terrorism of 9/11. Because of the laws of discovery, they will have access to all the secret files of the CIA and FBI that refer to them. Thus our intelligence people throughout the Middle East will be compromised and we will be left with almost no Intelligence sources. The water boarding/torture debate will rage for months or maybe years while these murderers receive millions of dollars of legal aid from us. In the end, there is an excellent chance that they will be found innocent and be free to walk upon American soil as free men.

Of course if this travesty comes to be, the blame will be Obama’s, as a matter of fact, the closing of Guantanamo, an insipid and thoughtless campaign promise has precipitated this miscarriage of justice and no matter how this plays out, Obama will be held responsible.

Burger and Dasch were released in 1949 and deported to Germany. Dasche spent the rest of his life trying to be readmitted to the US without success.