Although huge in scope and impact, the 9/11 attacks were not the
first threat by foreign terrorists on American soil. During World
War II, eight Germans landed on our shores in 1942 bent on
sabotage. Caught before they could carry out their missions, under
FDR's presidential proclamation they were hauled before a secret
military tribunal and found guilty. Meeting in an emergency
session, the Supreme Court upheld the tribunal's authority. Justice
was swift: six of the men were put to death-a sentence much more
harsh than would have been allowed in a civil trial.
Louis Fisher chronicles the capture, trial, and punishment of
the Nazi saboteurs in order to examine the extent to which
procedural rights are suspended in time of war. One of America's
leading constitutional scholars, Fisher analyzes the political,
legal, and administrative context of the Supreme Court decision Ex
parte Quirin (1942). He reconstructs a rush to judgment that has
striking relevance to current events by considering the reach of
the law in trials conducted against wartime enemies.
Fisher contends that, although the Germans did not have a
constitutional right to a civil trial, the tribunal represented an
ill-conceived concentration of power within the presidency,
supplanting essential checks from the judiciary, Congress, and the
office of the Judge Advocate General. He also reveals that the
trials were conducted in secret not to preserve national security
but rather to shield the government's chief investigators and
sentencing decisions from public scrutiny and criticism. Thus, the
FBI's bogus claim to have nabbed the saboteurs entirely on their
own was allowed to stand, while the saboteurs' death sentences were
initially kept hidden from public view.
Fisher provides an inside look at the judicial deliberations,
drawing on the 3,000-page tribunal transcript, Supreme Court
records, and the private papers of the justices and executive
officials involved. He analyzes the deep disagreements within the
Roosevelt administration, leading to a conclusion in 1945 that the
process used against the eight Germans had been defective and,
thus, that an entirely different procedure was needed to prosecute
two later German saboteurs.
Nazi Saboteurs on Trial also reveals just how poorly the justices
resisted wartime pressures and how badly they failed to protect
procedural rights. Although Ex parte Quirin is cited as an "apt
precedent" by the Bush administration for the trying of suspected
al Qaeda terrorists, Fisher concludes that the 1942 decision was,
in the words of Justice Felix Frankfurter, "not a happy precedent."
His book provides a sober cautionary tale for our current effort to
balance individual rights and national security.
General
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