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February 26, 2018 Articles

Dissents and the Executive Power: From Nazi Saboteurs to Guantanamo

Dissents can shape future law, as seen in cases dealing with the scope of executive power in times of war.

By Robert A. O’Donnell and Lara Grillo – February 26, 2018

Our last article considered how dissents can survive and continue to shape law. They appeal, as Justice Hughes once described, “to the brooding spirit of the law, to the intelligence of a future day.” This article considers the scope of executive power in times of war, developed in the dissents of Justice Jackson that resurfaced in later decisions, including the Supreme Court’s decision in Hamdi v. Rumsfeld and the Ninth Circuit’s recent opinion in Hawaii v. Trump

Justice Jackson’s Dissents: The Quirin Case
Our entrée into Jackson’s jurisprudence of war is the so-called Nazi Saboteur Case of 1942. Ex parte Quirin, 317 U.S. 1, 63 S. Ct. 2, 87 L. Ed. 3, modified sub nom., United States ex rel. Quirin v. Cox, 63 S. Ct. 22 (1942).

Roosevelt established a special wartime tribunal. In June of 1942, two separate teams of German agents landed in Florida and Long Island, sent by the Nazi regime on missions of sabotage. Most spoke English well; two were American citizens. They never bombed a single plant or cut a single line because two of their party spoiled their cover: George Dasch, one of the American citizens, agreed with Ernest Burger to expose the plot to the FBI.

In retrospect, it was surprisingly difficult for a man to get himself arrested, even after admitting coming to the United States to commit outrages on behalf of an enemy power. Dasch first called the New York branch of the FBI from a hotel lobby in Manhattan, claiming that he was a Nazi spy who had come to sow wanton malice and destruction. The supervisor of the FBI agent who took the call retorted that Napoleon had phoned the day before. Dasch, despite evidence to the contrary, was convinced that the U.S. government would want to prevent Nazi Germany from perpetrating wholesale bedlam, so he took a train to Union Station, hoping to confront J. Edgar Hoover himself with the details. With a bit of perseverance, Dasch managed to pique the attention of one agent long enough to have others sent to Dasch’s hotel room. The bag that they found filled with thousands of dollars in American cash helped convince them that Dasch was, at least, no ordinary nutter.

Soon, Dasch’s accomplices were in FBI custody, and the real controversy began: Roosevelt wanted them dead but didn’t want to risk leaving the men to the slow justice of the Article III courts, where numerous appeals and procedural chicaneries could delay, if not altogether undermine, Roosevelt’s hope for a speedy hanging. As it turns out, Roosevelt was also open to death by firing squad and, ultimately, death by electrocution. One cannot always stand on ceremony.

To circumvent both the federal courts and the courts-martial, Roosevelt announced by executive order the creation of a special military tribunal, one that, unlike the courts-martial, did not require unanimous consent among the adjudicators to impose the death penalty. Roosevelt further decreed that the saboteurs could not be tried by any other court.

To achieve the president’s wishes, Roosevelt’s secretary of war consulted with Justice Felix Frankfurter to discern how the saboteurs’ case could avoid the Supreme Court’s jurisdiction. Frankfurter advised keeping the secretary of war, a civilian, off the tribunal so that a panel composed exclusively of military men could hear the case.

Such a military panel did hear the case in the end and, in a matter of days, found the defendants guilty and sentenced them to death. Counsel for the defendants appealed the decision, and soon the case was headed to the Supreme Court, which suspended its summer vacation to resolve the matter quickly. The Court denied the petitioners’ appeals for habeas corpus, and its members returned to their respective vacations, promising an explanation in the future.

Justice Jackson wrote the concurrence that never was. When the justices reconvened to write the Quirin opinion, the executions had been completed, and the political stakes to deliver a unanimous and persuasive opinion were high. Among those justices who felt reservations in retrospect about the Quirin decision, much of the debate turned on whether Roosevelt acted within the scope of his authority vis-à-vis the Articles of War passed in Congress in 1920, articles that detailed the use of military tribunals and courts-martial. 

It was in this context that Justice Jackson expressed unique reservations in a concurrence that never was—a concurrence that he drafted but (as was a favorite ploy of his) ultimately agreed not to publish.

Some of Jackson’s quibbles were technical. For example, Jackson felt that the protections outlined in the Articles of War did not apply to enemy combatants but rather to U.S. citizens and soldiers during times of military rule. Jackson propounded a broader argument, though, one that he would develop through his most famous dissents and concurrences, and one that has resurfaced in Supreme Court writings over the past several years: that the president has certain inherent and exclusive wartime powers, among them the prerogative to establish military tribunals during times of war. Under that theory, then, not only did the president not need Congress to form the tribunal that considered the saboteurs’ case, it was not Congress’s prerogative at all to regulate it. Nor was it the Court’s business to question the proceedings. Indeed, according to Jackson, “the whole business of reviewing the President’s order” was “unauthorized and possibly mischievous.”

Jackson based that conclusion on the assumption that military matters were the province of the commander in chief and that men captured during war would be outside the reach of our civilian government and entirely within the scope of the execution of military responsibilities. Military responsibility is the point for Jackson: the president’s authority is at its zenith concerning men captured during war or concerning those suspected of seeking to undermine some imminent military objective.

Though Jackson kept his concurrence to himself, it remains an important document that demonstrates his developing intuitions regarding the extent of executive power in a crisis, as well as the correct role for the Court, if any, in such matters.

Justice Jackson’s Dissents: The Korematsu Case
Justice Jackson would soon have ample opportunity to consider his wartime philosophy during President Roosevelt’s internment of Japanese Americans.

By the spring of 1942, the Roosevelt administration’s curfew for West Coast Japanese Americans had evolved into a massive program of detention. Over 100,000 Japanese Americans were ordered to report to military officials for relocation into the internment camps that would be their home for three years. 

The Court considered the constitutionality either of the detention or of the curfew and exclusion that preceded it (the justices disagreed as to which) in the autumn of 1944. In Korematsu v. United States, 323 U.S. 214 (1944), the Court affirmed the conviction of Fred Korematsu, an American citizen who disobeyed an order to exclude Japanese Americans from San Leandro in California.

Unconstitutionality is not always in the realm of the Court. Justice Jackson wrote a peculiar dissent. He argued that the series of orders that made it a crime for Korematsu to remain in his hometown was indeed unconstitutional—but nevertheless beyond the scope of the Supreme Court’s authority. It would be unwise, Jackson argued, to expect the judiciary to opine on military matters, matters that often required decisive action and expert knowledge:

When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal. . . . A commander in temporarily focusing the life of a community on defense is carrying out a military program; he is not making law in the sense the courts know the term. He issues orders, and they may have a certain authority as military commands, although they may be very bad as constitutional law.

Id. at 244.

The solution, Jackson proposed, would be to overturn Korematsu’s criminal conviction but refrain from issuing a writ of habeas corpus or in any way impeding President Roosevelt and General DeWitt’s project of exclusion and consequent internment. Justice Scalia kept on his desk a stamp that read “stupid but constitutional.” Jackson perhaps needed one that read “unconstitutional but shrewd.”

The Moyer case was a precursor to the Korematsu dissent. Justice Holmes had offered a similar view, 35 years earlier, proposing that the nature of due process changes with respect to circumstance and necessity. In 1909, the Court considered the case of Moyer v. Peabody. James Peabody, then governor of Colorado, declared a county to be in a state of insurrection and ordered the plaintiff arrested and held without trial as the leader of the revolt. In Holmes’s unanimous opinion, he argued that the necessities of the time demanded deference to the governor’s decision: “[W]hat is due process of law . . . varies with the subject-matter and the necessities of the situation”; and “[w]hen it comes to a decision by the head of a state upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment.” Moyer v. Peabody, 212 U.S. 78, 84–85 (1909).

Hamdi v. Rumsfeld: Reliance on Quirin and Milligan
Justice Jackson’s particular theories of the president’s powers during a crisis gained recent traction when the Bush administration detained several prisoners of war at the Guantanamo naval base in Cuba after the attacks of September 11. Some of the detainees were citizens. In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Court considered the scope of the president’s authority to detain individuals as enemy combatants during military operations. The plurality held that, in the particular circumstances of the case, detention was authorized but the detainee had a due process right to counsel, notice, and an opportunity to rebut the finding that he was an enemy combatant in front of a neutral decision maker.

The Quirin dissent resurfaced in Hamdi. Quirin resurfaced in various opinions in Hamdi, including the plurality opinion; the partial dissent and concurrence of Justice Souter and Justice Ginsburg; and the competing dissents of Justice Scalia, Justice Stevens, and Justice Thomas. Those dissents also cited Moyer.

Justices Scalia and Stevens reminded the Court that the Constitution was designed “precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.” Hamdi, 542 U.S. at 579. Congress already has the constitutional authority “to relax the usual protections [against indefinite imprisonment of citizens without process] temporarily” through the Suspension Clause, which provides a procedure for citizens captured during hostilities and suspected of abetting the enemy: they are “treated as traitors subject to the criminal process.” Id. at 554, 559.

In fact, Justices Scalia and Stevens pointed out, not only was Hamdi’s case amply provided for in the Constitution, but also it had obvious precedents in Anglo-American history.

Ex parte Milligan resurfaced in Hamdi. Just as Quirin haunted the Court in Hamdi, so did Ex parte Milligan, 71 U.S. 2 (1866), a nineteenth-century case about a man accused of conspiratorial mischief—a case, moreover, that the Court struggled with and tried to distinguish in Quirin. The struggle is no wonder because Milligan stands for the position that criminal process is “the primary means—and the only means absent congressional action suspending the writ—not only to punish traitors, but to incapacitate them.” Hamdi, 542 U.S. at 568.

Milligan also stands for the agon between two principles: First, the rights of man are older than his government, and those rights have found their deepest expression in the accumulated wisdom of Anglo-American common law. Jurists labor, albeit imperfectly, to protect that tradition. Second, the hearts of men are prone to corruption, and we entrust our lawgivers and our judges to contain the evil that they might do.

In Milligan, Justice Davis made a stirring case for the first principle; Chief Justice Chase proffered a sobering and thoughtful articulation of the second. On the one hand, Justice Davis noted that it is “the birthright of every American citizen when charged with a crime to be tried and punished according to law.” 71 U.S. at 119. On the other hand, Chief Justice Chase reminded the majority that no body of government has powers not granted to it by the law. And Congress, he argued, not the Supreme Court, has the authority to establish military councils; Congress, not the Supreme Court, has the power to determine those councils’ purview.

The president little by little took much of that initiative away from Congress in Hamdi.

Hawaii v. Trump
The executive power as it concerns wartime and national security interests is once again at the fore. In Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017), cert. granted, No. 17-965, 2018 WL 324357 (Jan. 19, 2018), the Ninth Circuit found that the president’s third executive order, or “proclamation” instituting restrictions on the entry of foreign nationals from eight countries, exceeded the president’s delegated authority under the Immigration and Nationality Act.

The Ninth Circuit also found the proclamation incompatible with the will of Congress and that the president lacked independent constitutional authority to issue it. Citing Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the Ninth Circuit found that the president lacked alternative authority for the proclamation. The court of appeals noted that under Youngstown, presidential actions contrary to congressional will leave the president’s power “‘at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.’” Hawaii, 878 F.3d at 697 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring)).

The court expressly did not decide whether the president may be able to suspend entry pursuant to his constitutional authority under othercircumstances, such as in times of war or national emergency, finding that “the Proclamation was issued under no such exceptional circumstances.” Id. at 697 n.24. Thus, the court ostensibly avoids confronting, for the time being, Chief Justice Chase’s insistence that it is a matter of judicial humility, and of the correct balance of powers, for the courts to acknowledge their own limitations in matters involving military intelligence that require swift action. The court likewise chose not to tackle Jackson’s insistence in Youngstown that “opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power’s validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant.” Youngstown Sheet & Tube Co., 343 U.S. at 634.

We may soon learn what the U.S. Supreme Court has to say on these points and whether its justices are inclined to follow Jackson’s lead.


Robert A. O’Donnell received his J.D. at Harvard Law School in 2010 and his A.B. at Harvard College in 2005. Lara Grillo is a business litigator and appellate practitioner in Miami, Florida.

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