But then on June 27, FBI Director J. Edgar Hoover announced to the country that superior American intelligence had foiled a Nazi plan to destroy U.S. bridges and factories. The FBI had captured eight Germans and German-Americans, who had landed in Long Island and Florida. Their arrest set in motion a series of events that can serve as a historical backdrop for President Bush's Nov. 13 executive order permitting the military to try suspected foreign terrorists in tribunals instead of the criminal justice system.
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President Roosevelt and attorney general Francis Biddle, who would serve as the government's lead prosecuting attorney, suddenly had an opportunity to prove that we had made progress, that we had defeated the first Nazi threat on our soil. Hoover in particular wanted to maximize the public relations value of the arrests: He kept secret for a few years that it was two of the saboteurs, who, hoping to defect, had alerted the FBI to the plan, not prodigious agents.
I moved to Washington in the weeks after Pearl Harbor remember, this was a war that everyone wanted to fight in and worked as an attorney for a member of the Justice Department Office of Legal Counsel. One Sunday afternoon in June I was called and asked to report to the Justice Department, where for three months I worked as the youngest of 10 lawyers who tried the saboteurs. In the days after Hoover's announcement, I helped draft a proclamation for Roosevelt that created a military commission to try foreign spies and saboteurs, and denied them the right to judicial review and the right to trial in nonmilitary U.S. courts. They would, instead, be tried by a military tribunal of seven generals, none a trained lawyer, in a conference room in the FBI headquarters, on the fifth floor of the Justice Department, away from the press, a civilian jury and civilian judges.
The executive order issued by President Bush last week is in some ways similar to Roosevelt's July 2, 1942 document, but the events and terms differ in important respects. Notably, we had eight people in jail and had to devise a quick means of trying them as spies. That is the reverse of our present situation; just whom we would try and before what kind of military tribunal remain to be seen. We do not know yet under what circumstances the president intends to activate a military court, and it is likely that the president and his advisors have not yet decided themselves.
The appointment of a Justice Department attorney this week to flesh out Bush's order is welcome, because the current document seems incomplete in at least three respects: it does not define "terrorism," rules of evidence for a military trial are not specified and it makes what in most cases may be a vain attempt to ban an outside nonmilitary judicial review of any American military trial in the U.S. or abroad. For example, if a suspected terrorist were apprehended in France, it seems unlikely that the French judiciary would turn the suspect over for military trial in France or the U.S. without reviewing the case. In general, most countries, including France, refuse to extradite their own nationals. Even in the wartime fervor of 1942, the U.S. Supreme Court ignored Roosevelt's order denying the German saboteurs access to the civilian court. The Court reached the merits of the saboteurs' appeal and upheld the convictions and the penalties death by electrocution for all but the two defectors to proceed.
In July 1942, when the first witness took the stand and was asked the first question, Kenneth Royall, the appointed counsel for the defendants, stood up and made a valid objection to the form of the question. The tribunal recessed for 45 minutes, roughly the amount of time it takes to smoke a good cigar, and returned with their response. Objection overruled. The question was answered and another asked. Royall stood up and made a second sound objection, but after another cigar break, the panel again overruled him. At this rate the trial would have lasted three years, but Royall took the generals' hint and sat virtually mum for the remainder of the month-long trial.
There are legitimiate uses for a military trial trying terrorists in a military court in a place as lawless as Afganistan is one of them. But whether and under what rules a trial of terroists in the United States should be conducted in secret or in public before a military tribunal is another matter. In a case such as the 1942 trial of the German saboteurs, it would clearly be justified on its merits and the Supreme Court expressly so held. But in other cases, the administration itself may well conclude that the wiser public policy is either a public military trial with a right of judicial review or even a public prosecution in the regular civilian courts.
Lloyd Cutler served as White House counsel during the Jimmy Carter and Bill Clinton administrations.