Lone Dissent

MR. CHIEF JUSTICE STONE: Are there any applications for admission?

THE CLERK: Cassius M. Dowell.

COLONEL ROYALL: May it please the Court, I move the admission of Colonel Cassius M. Dowell of Fort Dix.

I have examined his credentials filed in the office of the Clerk and am satisfied that he possesses the necessary qualifications.

MR. CHIEF JUSTICE STONE: Colonel Dowell, you may take the oath.

MR. CHIEF JUSTICE STONE: The Court has ordered that it convene in Special Term in order that certain applications might be presented to the Court, in open court, and argument be heard in respect thereto.

Mr. Justice Douglas is in the West and is on his way to attend, but he has not yet been able to arrive.

He will be vouched in and participate in the decision of the Court.

Mr. Attorney General, from the papers filed, we are aware that this proceeding is brought to contest the validity of the detention of certain persons now being tried by a military commission.

I am informed that my son, who is an officer in the Army, was assigned to participate in the defense.

Of course, if that fact were regarded as ground for my not participating in the case, I should at once disqualify myself.

In order that I may be advised and that the Court may be advised whether he has participated in this proceeding and what his connection with the case is, I will ask you, if you are so advised, to state, so that it may become of record.

THE ATTORNEY GENERAL: May it please the Court, and Mr. Chief Justice: The counsel for the Prosecution and the Defendants are agreed that your son, Major Lauson H. Stone, did not in any way participate in these habeas corpus proceedings.

He assisted defense counsel in the presentation of the case before the Military Commission, under orders.

He in no way worked on the proceedings or did anything in connection with the proceedings before this Court, and therefore counsel for both sides join in urging, Mr. Chief Justice, that you sit in this case.

MR. CHIEF JUSTICE STONE: Does counsel for the petitioners concur in that statement?

COLONEL ROYALL: We do.

MR. CHIEF JUSTICE STONE: You may proceed.

COLONEL ROYALL: The record itself discloses-and this fact is noted in the brief that on a previous day application had been made for leave to file this petition before Mr. Justice Morris of the District Court of the United States for the District of Columbia, and that he refused to permit the filing of the petition for writ of habeas corpus in the District Court.

We therefore ask the consideration of this present writ in the appellate jurisdiction of the Supreme Court.

MR. JUSTICE FRANKFURTER: Did Judge Morris make any memorandum or write any decision?

COLONEL ROYALL: He did make a memorandum.

MR. JUSTICE FRANKFURTER: Is that in the record?

COLONEL ROYALL: That is also in the record.

It should be attached to the petition.

It is on the copy which I have, and I assume it was so attached in the original.

Incidentally, there has been furnished to the Court, I think, a copy of one of the petitions, all of them being alike, with some minor differences; and also there has been attached thereto a notation of those minor differences.

MR. JUSTICE REED: I have before me the original petition which appears to have been filed, but I do not see the document to which you refer.

COLONEL ROYALL: It should be on the last page.

If it has been omitted from any copy, it was an inadvertence.

MR. CHIEF JUSTICE STONE: You made separate applications, and there is an entire file of those applications, the last page of which is the order, and also a memorandum statement of the grounds upon which Justice Morris denied the application?

COLONEL ROYALL: Yes, sir; that is correct.

On that feature of the matter we have not thought it necessary to give any discussion in the brief itself.

The question of the appellate jurisdiction of the Court and of the issuance of a writ of habeas corpus in connection with your appellate jurisdiction has been given careful study by the Attorney General's Office, as well as by ourselves, if the Court desires any discussion of that.

MR. CHIEF JUSTICE STONE: Does the Attorney General challenge the jurisdiction of this Court?

THE ATTORNEY GENERAL: I do not, Mr. Chief Justice.

MR. JUSTICE FRANKFURTER: Will you state briefly the grounds on which you claim jurisdiction?

THE ATTORNEY GENERAL: We want to make it clear that we do not challenge the jurisdiction of the Court on this specific ground; that is, the Court's appellate jurisdiction to entertain a writ.

MR. JUSTICE FRANKFURTER: Will either you, Colonel Royall, or the Attorney General state briefly the grounds on which you claim this Court has jurisdiction, how it has such jurisdiction over an order to review Justice Morris' denial of the petition?

COLONEL ROYALL: The Court is familiar with the statute which provides that the Supreme Court may issue a writ of habeas corpus.

That statute must, of course, be construed consistently with the Constitution of the United States, which limits the jurisdiction of this Court to an appellate jurisdiction.

To give the statute any meaning at all, therefore, it must be construed as being a method of appeal or a method of review.

The ordinary methods of review are not included within the writ of habeas corpus.

Therefore the ordinary procedure-.

MR. JUSTICE FRANKFURTER: Why do you say that?

COLONEL ROYALL: Because a writ of habeas corpus is, in and of itself, a different type of writ from a writ of certiorari or any other method of review with which I am familiar.

MR. JUSTICE FRANKFURTER: You mean that the restriction upon the appellate jurisdiction of this Court, Article III, does not apply to habeas corpus cases?

COLONEL ROYALL: I think it does apply to habeas corpus, but habeas corpus, being provided by statute, is an additional method of review.

By “additional method” I mean it is in addition to certiorari or any other method of review prescribed by law.

That being true, when a lower court, whether it be district or circuit, has denied or at least has refused to permit the filing of a petition for writ of certiorari, it is, of course, subject to review; and we think the statute means that an appropriate method of review is an application to this Court for a writ of habeas corpus; and it appearing that upon the contention of the petitioners the petitioners are unlawfully detained in restraint of their liberty, and it further appearing from the petition that their effort to obtain habeas corpus from the court of primary jurisdiction has been unsuccessful-.

MR. JUSTICE FRANKFURTER: Could Congress provide that appeal from the district court should only lie to the circuit court of appeals?

COLONEL ROYALL: It could so provide.

MR. JUSTICE FRANKFURTER: And the question is whether it did?

COLONEL ROYALL: The question is whether it did, when you construe the ordinary methods of review and also give effect to the provision that the Supreme Court may issue a writ of habeas corpus.

MR. JUSTICE FRANKFURTER: In other words, your argument boils down to this, that the Act of 1891 does not apply to habeas corpus?

COLONEL ROYALL: That is correct, sir.

That is the application of the argument.

This has been passed on, almost upon the exact facts, in two cases, to which we refer you.

Incidentally, this memorandum has been worked out jointly.

The case more nearly in point is the case of Ex Parte Yerger, 8 Wallace 85.

MR. JUSTICE FRANKFURTER: What is the date?

COLONEL ROYALL: 1868.

MR. JUSTICE FRANKFURTER: That was before the Act of 1891.

COLONEL ROYALL: It was.

The next case most nearly in point is also before that Act, the case of Ex Parte Bollman and Swartwout, 4 Cranch 75.

So that, it seems to me, is the position that we must take and do take in this matter.

I do not know whether it is appropriate to say or not, and if the Court does not think so, I will of course not pursue it further; but as a practical matter, this was all that we could do.

MR. JUSTICE FRANKFURTER: Do you mind spelling that out?

COLONEL ROYALL: The Military Commission started its sessions on the 8th day of July and counsel were appointed a few days before that and were under orders to take part in the proceedings before the Military Commission, which they did.

It has been impossible, as a physical matter, to do anything but attend those hearings, until the evidence stopped.

I think no one would deny that who knows the circumstances.

As soon as the evidence closed, even prior thereto, we made an effort to present this matter in the best and quickest way possible.

The order appointing the Military Commission, which is a part of the record, provides for no review in the ordinary sense.

That is, between the time the Commission takes its action and the time the Executive acts there is no period which anyone.

could safely count on between the conclusion of the hearing before the Commission and the execution of any sentence that might be imposed; and it is apparent that it would have been impossible, even in the matter of preparing papers, if nothing else, to have followed anything other than this procedure.

There is another practical reason in favor of the procedure.

Defense counsel conceive that it is their duty to assert every right which these petitioners have to assert.

They do not conceive it to be their duty to resort to anything of a dilatory nature; and this is a prompt method, if sound, of dealing with the matter.

MR. JUSTICE FRANKFURTER: The question on which I would like your view is why, after Justice Morris' denial, you did not take steps to appeal therefrom before the Circuit Court of Appeals for the District.

COLONEL ROYALL: Justice Morris' denial was at eight o'clock last night, or probably thereafter.

The Commission meets again tomorrow to dispose of this matter, at least to hear our arguments and then to dispose of it as it sees fit.

MR. JUSTICE FRANKFURTER: Why could not the appeal have been perfected before the circuit court of appeals?

That does not require elaborate papers.

COLONEL ROYALL: No, it does not.

The appeal might have been perfected if we had had a little additional element of time.

MR. CHIEF JUSTICE STONE: That would not affect our jurisdiction.

COLONEL ROYALL: No, it would not.

All it would do would be to take one further step towards reaching this Court, and further steps would have to be taken.

MR. JUSTICE FRANKFURTER: But it would level the path from the circuit court of appeals to this Court.

COLONEL ROYALL: That might have been done, sir.

MR. JUSTICE FRANKFURTER: Then it furnishes an indispensable step in jurisdiction which otherwise the Court does not have?

COLONEL ROYALL: That is entirely correct; and it was our purpose and, since the inquiry has reached this stage, it is still our purpose, to ask this Court to follow this procedure which I now suggest, that you hear this matter on argument, if that can be appropriately and properly done, and that we be permitted to take such additional procedural steps as may be necessary, if the Court desires to grant that permission.

We do that out of an abundance of caution, because we feel that the habeas corpus statute as applicable to the Supreme Court, still being in existence, should be given some meaning, and we know of no other meaning it can be given as a method of appeal.

I would like to suggest that perhaps the Attorney General has some views on this matter, if it is appropriate for him to express them.

MR. CHIEF JUSTICE STONE: Have you filed the memorandum to which you have referred?

COLONEL ROYALL: No, sir; we have not.

There should be no difficulty in filing it.

It was finished at quarter to twelve, I think.

MR. CHIEF JUSTICE STONE: Do you cite the Siebold case?

THE ATTORNEY GENERAL: Yes, sir.

MR. JUSTICE FRANKFURTER: Is there any case, Colonel Royall, within the time you had to investigate this matter, since the Circuit Court of Appeals Act, in which this Court has held that a direct review of a denial of a habeas corpus in the district court is properly here, although the circuit court of appeals has completely disregarded it?

COLONEL ROYALL: Not unless it was found since I left the office at quarter to twelve.

MR. JUSTICE FRANKFURTER: We were talking about cases coming from the state courts.

COLONEL ROYALL: Yes, I understand.

I do not know of any, sir.

It is possible that some have been found.

I have not been able to find any.

MR. JUSTICE ROBERTS: There are two cases in which we have taken cognizance of direct appeals.

One is in 255 U.S. But that question was not discussed in those cases.

MR. JUSTICE FRANKFURTER: In the Siebold case was there any way by which the matter could have been reviewed?

In other words, if this Court had not exercised its appellate jurisdiction, would there have been any other way to review it?

COLONEL ROYALL: I have not analyzed the case to the extent that I am able to give you an answer to that question.

I am sorry.

MR. JUSTICE FRANKFURTER: I do not mean that you have had time to examine these cases.

COLONEL ROYALL: I will tell you that I have not.

I wonder if the Court would think it appropriate to hear from the Attorney General.

MR. CHIEF JUSTICE STONE: Since it is a jurisdictional matter, I think it would be appropriate to get your position and then their position.

THE ATTORNEY GENERAL: As the Court sees, we have not examined the jurisdictional question to the extent that we should have.

My view is this.

I think I will first quote from the Constitution, so as to begin at the beginning.

Article III, of course, provides that in all cases affecting ambassadors and other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction.

In all the other cases mentioned the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.

So it is perfectly clear in the Constitution that the Supreme Court has no original jurisdiction of writs of habeas corpus; and it was so held in the case of Marbury and Madison and the line of cases following.

However, the Supreme Court, in the cases which we cite in the memorandum, has given great latitude to entertaining writs in their appellate jurisdiction.

This seems to me to be a matter of discretion which may be exercised favorably to their jurisdiction, under the very unusual circumstances presented.

In other words, if there is a color of a lower Federal court having denied the writ and the process under which, by appeal, the matter might be brought up, it seems to me to be within the discretion of the Supreme Court, in aid of the appellate jurisdiction though not necessarily following the form of the appeal provided by the statute, to hasten the exercise of that jurisdiction by the issuance of a writ which is in aid of the jurisdiction which has been established in the lower court.

Applications to the Judges of the Circuit Court of Appeals for the Ninth Circuit for allowance of an appeal to that court from the judgment of dismissal have severally been denied.

Of course, it is true that in that case there was the filing of an appeal, which method has not been pursued here; but that does not seem to me to go to the fundamental jurisdiction of this Court to exercise its discretion even before the steps had been taken to perfect an appeal from the district court.

MR. JUSTICE JACKSON: Your point is that if it did not come here by a paper called a writ of habeas corpus, it could be sent up by a paper called a writ of certiorari?

THE ATTORNEY GENERAL: Yes, Your Honor.

MR. JUSTICE JACKSON: And whether the Court exercises jurisdiction under the one title or the other is not important at this time?

THE ATTORNEY GENERAL: May I add a word to that.

It seems to me that to say that you do not have jurisdiction would be to deny your ability to issue a writ in aid of the appellate jurisdiction which you clearly would have under the appeal.

MR. JUSTICE FRANKFURTER: But until there is an appeal you have not got any.

THE ATTORNEY GENERAL: I cannot concede that.

MR. CHIEF JUSTICE STONE: In the Siebold case the Court took jurisdiction on the ground that Congress had not allowed an appeal, but nevertheless had not prohibited the exercise of the Writ in aid of jurisdiction.

THE ATTORNEY GENERAL: That is, of course, true, Mr. Chief Justice.

MR. CHIEF JUSTICE STONE: The real question we have here is whether or not by having granted only an appeal to the Circuit court of appeals on certiorari Congress intended to foreclose the traditional exercise of the right to issue habeas corpus.

THE ATTORNEY GENERAL: That is the precise question.

I take it, then, from what the Chief Justice says, that unless the Congress has foreclosed that appeal, it is not inappropriate for the Supreme Court to grant a writ in aid of that appeal unless you can find something in the statute which forecloses that action; and the argument is only that Congress, having provided methods of appeal, says to the Supreme Court that it cannot use other writs to expedite the method.

Not much light is thrown by the statute and the Code.

I think it is pertinent to quote Section 262 of the Code, which is in 28 U.S.C. 377.

And again, I say that it is not determinative of this, but nevertheless I think it throws some light upon the question.

It says that: The circuit courts of appeal and the district courts shall have power to issue all writs not specifically provided for by statute… Of course, it is contended that this writ is specific, but I think the language is broad enough to cover the right of the Supreme Court to issue writs generally.

It says, if I may finish it: Shall have power to issue all writs not specifically provided for by statute which may be necessary for the exercise of their respective jurisdictions.

In this case your respective jurisdiction is the appellate jurisdiction over writs of habeas corpus.

MR. JUSTICE FRANKFURTER: Does not that beg the whole question, namely, that we have appellate jurisdiction over writs of habeas corpus?

THE ATTORNEY GENERAL: I think the only way of knowing that is from a study of the statutes.

It does not seem to me to beg the question to say that the statute indicates that other writs may be issued in aid of your jurisdiction.

MR. JUSTICE FRANKFURTER: But that statute was passed before there was a Circuit Court of Appeals Act, in 1891 and then 1925.

Therefore we have to consider the Act of 1891 plus the Act of 1925 and the purposes for which those statutes were passed.

Certainly Congress could say, as it did say, that you must first go to the circuit court of appeals before you can go to the Supreme Court of the United States; and therefore the question really is on the mailer of bringing cases to this Court directly from the district court, except in the specifically enumerated instances, and whether it was impliedly excepted to as to habeas corpus.

THE ATTORNEY GENERAL: That is the question.

MR. JUSTICE FRANKFURTER: In the only case that I know of since the Act of 1925, the Court discharged the rule which it had granted for a writ of habeas corpus.

It did not write any opinion, and one does not know whether it was on jurisdictional grounds or not.

But the fact is, if you will be good enough to look at it when you get the time, that the Court did first grant leave and then discharged the writ; and I think there is reason for saying that it did it on jurisdictional grounds.

MR. JUSTICE JACKSON: If there is no authority one way or the other on this matter, and if it is an open question, then I suppose it is a question whether, in dealing with it, we should send this to some other court and endure a period of delay, or go ahead and decide it.

You see no reason, as representing the Government, to suggest delay, do you?

THE ATTORNEY GENERAL: I see no reason.

Moreover, there is a very practical reason which defense counsel has urged and will urge, that even if an appeal be granted it might not act as a stay, and the case would very quickly become moot.

I would like to argue the matter a little further to meet Mr. Justice Frankfurter's suggestions, which of course are pretty vigorous and fundamental.

May I finish the reading of this Section of the Code?

All writs not specifically provided for by statute which may be necessary for the exercise of their respective jurisdictions and agreeable to the usages and principles of law.

That is a very wide phrase, looking, it seems to me, to the aid of the Court by the use of any writs which can help its jurisdiction.

After all, I think it is important to remember that the appellate jurisdiction is granted by the Constitution, and I take it that the Constitution grants to the Supreme Court such a broad appellate jurisdiction that the jurisdiction can be aided in any way which the Court deems appropriate, in the absence of clear language in the statute saying that the Supreme Court shall not aid its appellate jurisdiction by this method.

I do think the circumstances of the case are important, because obviously that is a matter of discretion which certainly should only be exercised in the most exceptional cases.

MR. JUSTICE FRANKFURTER: This jurisdiction exists in this case and it exists in other cases, and it may be said and correctly said that criminal judgments should be quickly disposed of, and therefore there is ground for arguing as to every criminal case that instead of going from the district court to the circuit court of appeals you can come to this Court by way of habeas corpus.

But unless there is specific provision in the statute to the extent of stating explicitly what types of cases may come directly from the district court to the Supreme Court, this Court might be deluged with cases.

THE ATTORNEY GENERAL: In answer to the suggestion that the Court might be deluged with other cases, if you have discretion you may refuse to exercise it merely because there may be other cases along this line where the exercise of discretion would be improper.

It seems to me that a study of the cases shows, assuming I agree, as Mr. Justice Frankfurter pointed out, that the statute was not in existence at the time the Yerger case was decided, but nevertheless the Supreme Court did at that time, where no appeal existed, use this writ to help its appellate jurisdiction; and the fact that an appeal was later provided does not seem to me to necessarily bar it from the propriety of using a writ in aid of an appellate jurisdiction which had then been provided by the statute itself.

MR. JUSTICE JACKSON: Would there be objection on your part to filing an additional piece of paper which would obviate the difficulty?

THE ATTORNEY GENERAL: I do not see how I could urge any objection.

If counsel wishes to file any papers, let him do so.

MR. CHIEF JUSTICE STONE: You may take that under advisement if you wish.

If you want to say more on the jurisdictional point or file further briefs, that may be done; and you can now proceed to argue the case after you have completed whatever you wish to say on the subject of jurisdiction; and if counsel wish to make an application for certiorari, I suppose that is open.

COLONEL ROYALL: As I stated to the Court in my opening remarks, that is what we wanted to do.

Time was the only thing that prevented it; and we were going to ask permission to do that, for this question seemed to be a serious one.

I would like to say one additional thing about the appeal.

I recognize that the question is exactly as the Chief Justice and Mr. Justice Frankfurter have stated it to be, with one additional consideration.

The practical facts which I outlined have some legal significance.

A man is entitled to an appeal.

I think this thought was suggested to me largely by what Mr. Justice Jackson said.

He is entitled to an appeal.

He is entitled to an appeal that has some prospect of being of practical value.

If this were the only method of acting, I think the Supreme Court could do so.

May it please the Court, on the principal argument itself there are two questions presented to the Court which are capable of various divisions and refinements, but in essence they are whether the petitioners have a right to enter the civil courts because of the fact that most or all of them are aliens; and second, if they do have the right to enter the civil courts, have they established by their allegations a case of unlawful detention and restraint?

Six of the seven petitioners are admittedly citizens of Germany.

One of those six was originally a citizen, but by reason of the provisions of our statutes has lost his citizenship, he being a naturalized citizen and having failed to comply with some of the requisites necessary to keep alive his citizenship, so to speak.

The seventh member contends that he is a citizen; the prosecution contends otherwise.

All these persons lived in the United States for a considerable period of time.

All of them returned to Germany at varying periods.

All seven of them landed on the American coast from a German submarine.

All seven of them had attended some course of instruction in Germany.

MR. JUSTICE BLACK: Does that include the citizen?

COLONEL ROYALL: That includes the citizen.

MR. JUSTICE BLACK: That is admitted?

COLONEL ROYALL: That is admitted.

We are admitting only facts that the statements of the parties themselves definitely and specifically cover.

The group of seven was divided into two subgroups.

Part of them landed in Long Island, and part of them in Florida.

The group brought ashore certain explosives.

As we see the facts, there was no definite plan as to how and when those explosives would be used.

They have not been used, no damage has been done, and no person injured.

In connection with the facts which I have stated, I call the attention of the Court to a stipulation which was either filed this morning, within the past half or three-quarters of an hour, or Will be filed-I now understand it has been filed-which provides that in lieu of the necessity of testimony or reference to a master, the evidence given before the alleged Military Commission may be considered by this Court and has been filed with the Court.

Together with that there has been filed a request that that testimony, for military reasons, be impounded.

MR. CHIEF JUSTICE STONE: The Court has already considered that motion.

COLONEL ROYALL: The Court has acted on that?

I was not certain.

The stipulation serves the purpose of summarizing some of those facts covered by a voluminous stenographic report and includes facts as to which there is no controversy either way.

It is the contention of the petitioners that each of these alleged acts, or criminal acts, of the petitioners is covered by civil statute-that is, a criminal statute- in the civil courts and that the courts are open and these petitioners should be tried in the regular manner.

MR. CHIEF JUSTICE STONE: Before you go to that, may I ask you, is the point involved between a citizen and a noncitizen merely whether a noncitizen does not have access to the courts and a citizen may?

COLONEL ROYALL: I think that is the only significance of that fact in this particular hearing.

It happens that the facts relating to citizenship of the petitioner Haupt are so closely tied up with his guilt or innocence that it may be material elsewhere; but as far as this hearing is concerned, that is the only importance of whether or not he is a citizen.

MR. JUSTICE FRANKFURTER: I have not read any of the papers, Colonel Royall.

Does it appear from the papers whether or not the nonaliens were members of the military establishment of a foreign power?

COLONEL ROYALL: It appears with some equivocation.

I may hesitate to answer some of these questions, because Colonel Dowell and myself, particularly, are under rather strict orders as to secrecy, and we do not want to violate those orders; for that reason there may be some discussion here that we probably cannot go into.

MR. JUSTICE FRANKFURTER: That is why I restricted my question to the papers.

It was with reference to the question by the Chief Justice whether there was any difference between the citizen and the noncitizens.

COLONEL ROYALL: Yes.

MR. JUSTICE FRANKFURTER: I was wondering whether military allegiance to a foreign power or enemy power did not raise any question as to the loss of citizenship as it pertained to the citizens.

COLONEL ROYALL: There appears in the stipulation filed here certain facts that might tend to show that they were members of the foreign military power; there are other facts which we contend point otherwise in the case of certain of the petitioners.

MR. CHIEF JUSTICE STONE: Does it appear from the papers before us or from anything which you can speak of whether either of the alleged citizens ever took service in the German Army?

COLONEL ROYALL: Yes, it does.

MR. CHIEF JUSTICE STONE: And whether or not they took the usual oath of allegiance to Germany or the German Reich?

COLONEL ROYALL: It does not specifically appear in the stipulation that any of them took the oath of allegiance to the German Reich.

MR. JUSTICE FRANKFURTER: Do you represent both the citizens and the aliens?

COLONEL ROYALL: Yes, we represent the one citizen-who is, as we contend, still a citizen-and the other six.

MR. JUSTICE FRANKFURTER: So, as far as you are concerned, all these seven petitioners are in the same legal situation?

COLONEL ROYALL: There may possibly be a difference in the right to enter this Court between the aliens and the citizen.

MR. JUSTICE FRANKFURTER: But leaving that aside?

COLONEL ROYALL: That aside, there is no difference.

We think the aliens have a right to enter this Court.

In fairness, I must say that there might conceivably be a difference.

MR. JUSTICE BYRNES: As to Haupt, who alleges he is a citizen, what was the subject of the contract you stipulated he entered into with the sabotage school?

Is that one of the things you cannot tell?

COLONEL ROYALL: I do not think, sir, that we should go into detail on that.

MR. JUSTICE BYRNES: Would it disclose whether or not he had taken an oath of allegiance in that contract or had made any claim?

COLONEL ROYALL: He stated that he did not, and there is no direct evidence to deny it.

MR. JUSTICE BYRNES: He was given a uniform upon entering the school?

That is in the stipulation?

COLONEL ROYALL: Yes, sir.

MR. CHIEF JUSTICE STONE: I am not quite sure whether I understood you.

I thought you said you did not challenge Haupt's citizenship- that is, that the Government did not challenge Haupt's citizenship.

COLONEL ROYALL: The Government contends that Haupt is not a citizen; we contend that he is.

As to the other six, admittedly they are not citizens.

MR. CHIEF JUSTICE STONE: I suppose that in this proceeding the burden will devolve upon you to establish it, if it makes a difference?

COLONEL ROYALL: The burden would be on us to establish it; but it having been stipulated that Haupt was a citizen of the United States in 1941, there may be some question of that carrying the burden to the point where the prosecution must show otherwise.

MR. JUSTICE BLACK: Do I understand you to concede that the power to try a citizen before a military commission and the power to try aliens before a military commission is identical?

COLONEL ROYALL: I do think there is a difference there also, and I should correct any previous statement.

I think that in the case of citizens it is perhaps a little clearer that they cannot be tried by military commissions.

That is correct, sir.

I thank Justice Black for calling that to my attention.

We shall cover that later.

MR. JUSTICE JACKSON: As I understand it, you say that they landed from a submarine operated by the German Government?

COLONEL ROYALL: Right, sir.

MR. JUSTICE BLACK: They were brought here by the German Government and were landed on our shores?

COLONEL ROYALL: That is correct, sir.

MR. JUSTICE JACKSON: They constituted, I suppose, an invading force?

COLONEL ROYALL: No, sir.

MR. JUSTICE JACKSON: Why not?

If you concede that much, why did they not constitute an invading force that had no rights whatever except, of course, under the laws of war?

COLONEL ROYALL: Certain of the defendants, with varying degrees of corroboration, stated that they were using this as merely a means of escaping from Germany and reaching America and that they had no intention or purpose to commit any acts of sabotage or violence.

MR. JUSTICE JACKSON: Would your argument be based on the fact that their application depends on our believing that or accepting that as a fact?

COLONEL ROYALL: I do not know that it would, sir, because that involves, in turn, the Question of where the burden is, and I do not know where the burden is.

In other words, the fact is admitted that these men came from submarines.

It is not admitted that they were members of the German military force.

MR. JUSTICE FRANKFURTER: Will it be, or is it, your argument that the kind of issue that was discussed in the exchange of colloquy between you and Mr. Justice Jackson is an issue that must be tried before a civil and not a military tribunal?

COLONEL ROYALL: I think that would be our contention; and we think that, regardless of whether they came to this country as an invading force, if they could be designated as an invading force, they are still entitled under our statute to be tried by a civil court and are further entitled to show that the order appointing the Military Commission is fatally defective because it violates express statutes.

I am running ahead of my story somewhat, but this is to indicate what we shall contend.

MR. JUSTICE REED: Would it be fair to say from your argument that we must determine here a question of status, but that it is not necessary for us to determine here a question of guilt or innocence?

COLONEL ROYALL: Yes, sir.

I think that is exactly the distinction, if you have to determine the question of fact.

MR. JUSTICE REED: Do we have to determine the question of guilt or innocence?

COLONEL ROYALL: No, sir, I do not think you do.

MR. JUSTICE REED: Then, we may have other facts which relate solely to whether we should or should not issue the order of habeas corpus?

COLONEL ROYALL: Yes.

MR. JUSTICE REED: That would depend upon their relation to the military force; is that your contention?

COLONEL ROYALL: No, sir, not their relation to the military force; I do not think that is determinative of the question.

MR. JUSTICE REED: Is it a question of their status as enemies or citizens of Germany, or citizens of the United States, or engaged in military enterprises?

What is the status we must determine here?

COLONEL ROYALL: If the Court accepts our view in its entirety, there is no question of fact or no question of status presented.

We contend that regardless of the facts, regardless of whether they were citizens, and regardless of their method of entering this country, they are still entitled to be tried by a civil court.

MR. JUSTICE REED: Assume that they were soldiers of the German Reich.

COLONEL ROYALL: It would still be our contention that they would be entitled to be tried by a civil court; and further, that if they were not entitled to be tried by a civil court, this particular Military Commission is improperly constituted.

MR. JUSTICE REED: That is a different question.

MR. JUSTICE FRANKFURTER: Would it be agreeable to your presentation, Colonel Royall, if you stated without argument the propositions which you will submit to the judgment of this Court?

COLONEL ROYALL: I should be delighted to do so.

If I may be permitted, I should like to answer Justice Reed's question a little further.

I said our position, if taken in its entirety, makes the question of status, makes the question of the method of entering the country, entirely of no consequence.

However, in frankness we must concede that it is possible, if the Court does not accept our view in its entirety, that on the question of the right to be tried by the civil courts there would be various stages where the line could be drawn, depending upon the exact status of the people and the exact method of entry.

That would not, however, arise in any event on our other contention that I mentioned, that the Commission itself was not properly constituted.

MR. JUSTICE REED: Before you leave that, assume that this is a duly constituted Military Commission for the determining of the status of the parties before it.

Who has the determination of that status?

This Court or the Military Commission?

COLONEL ROYALL:

MR. CHIEF JUSTICE STONE: If the President is Commander-in-Chief.

Include that.

COLONEL ROYALL: Yes, sir; including that.

We say that, so far as it is a jurisdictional fact, it must be determined by this Court.

MR. JUSTICE REED: We are not discussing that.

COLONEL ROYALL: I think it is tied in with that, sir.

I think this is true: that perhaps the word “jurisdiction” is not the appropriate term to use for the President’s power, but that status might be material on the power of the President to act, and it might also be material upon the right of the men to be tried in a civil court.

MR. CHIEF JUSTICE STONE: Under the Constitution, the President, either with or without the authority of Congress, may declare martial law and enforce martial law?

COLONEL ROYALL: Yes, sir.

MR. CHIEF JUSTICE STONE: I am not yet saying what was necessary in authorizing him to do that; but if he does it under the authority of the Constitution and the laws of the United States, then no civil trial can take place.

Are we agreed on that?

COLONEL ROYALL: Yes, sir.

If he has properly and constitutionally declared martial law, some form of military court would try it.

MR. CHIEF JUSTICE STONE: I am not sure whether you rely on the Act of Congress or merely the Proclamation and Order of the President, but our first question is whether a situation here exists authorizing martial law.

If so, the civil courts are out of it.

I suppose we can agree on that?

COLONEL ROYALL: Well, sir, that may be true, with this qualification: If there were in fact the conditions necessary for martial law and by reason of them the President had declared martial law.

MR. CHIEF JUSTICE STONE: Well, he did not use those words, but his Proclamation, as I recall it, did refer to this as an invasion, did it not, or used the word “invasion”; and the Constitution itself provides that in the event of insurrection or invasion, martial law may apply.

COLONEL ROYALL: Whereas, the safety of the United States demands that all enemies who have entered upon the territory of the United States as part of an invasion or predatory incursion, or who have entered in order to commit sabotage, espionage or other hostile or warlike acts, should be promptly tried in accordance with the Law of War.

MR. CHIEF JUSTICE STONE: That is martial law?

COLONEL ROYALL: No, sir, I do not think it is.

Martial law ordinarily is a territorial matter and not a matter dependent upon the character or conduct of the individual.

MR. CHIEF JUSTICE STONE: In the usual case, it is martial law throughout an area.

The question here is whether the President may, under his powers as Commander-in-Chief and under the circumstances and the danger to the country in time of war, enforce martial law with respect to particular classes of individuals.

COLONEL ROYALL: Well, sir, that is not our idea of martial law.

There may be authority as indicated by the Chief Justice, but, as we understand it, martial law is a territorial matter.

There are other circumstances, which are not under martial law, which can authorize the denial of civil rights.

We say that the President has not sought to declare any type of martial law.

We further say that he has neither statutory nor constitutional authority for doing what he did do by this Proclamation.

MR. JUSTICE FRANKFURTER: I am not now considering whether or not it was valid, but the purport of this Proclamation of the 2nd of July is the establishment of a particular procedure with reference to particular offenses.

Is that a fair statement?

COLONEL ROYALL: Yes, sir, it is fair.

If it is not more restricted, it may be particular offenders.

MR. JUSTICE FRANKFURTER: Well, offenders must have committed offenses.

COLONEL ROYALL: What I mean by that is that the Proclamation was issued the same day as was the Order appointing the Commission, and the Order appointing the Commission relates to eight individuals.

MR. JUSTICE FRANKFURTER: But the underlying Proclamation is broad?

COLONEL ROYALL: The language is.

MR. JUSTICE FRANKFURTER: That establishes procedure.

So, I take it under that, assuming that it is fully in the exercise of the President's power as Commander-in-Chief; he could then designate a military tribunal to try other offenders in the military territory?

COLONEL ROYALL: That would follow from the Proclamation.

MR. JUSTICE JACKSON: Before we get to the question of the particular acts of the President, do we not have to deal with the rights of your particular people?

I sup pose you have the burden of showing that these people are illegally detained?

COLONEL ROYALL: That is correct.

MR. JUSTICE JACKSON: That is what it really amounts to.

You admit that they landed from a hostile submarine invading our territorial waters?

The submarine was invading our territorial waters?

COLONEL ROYALL: Yes, sir.

MR. JUSTICE JACKSON: I suppose that if anyone had seen them landing, he would have had a right to shoot them.

It would not have been murder; it would have been justifiable.

What I want to know, if that is true, and if there was that right to do that, is, at what point and by what act did your men cease to be in that status and acquire the right to be tried by a civil court, even though the Government might have proceeded civilly?

COLONEL ROYALL: Your questions are embracing territory that I have not covered in a long time in the practice of law, but may I respectfully suggest this: that the test by which a person landing on the shore could properly be shot or apprehended is not the test of whether or not he was committing a crime.

MR. JUSTICE JACKSON: Such persons might be subject to prosecution in the criminal courts but also be subject to being repelled by such force as necessary.

Could that not be true?

COLONEL ROYALL: That could be based on reasonable apprehension of the persons.

MR. JUSTICE JACKSON: Is it your contention that because they were not apprehended in the act of landing, the right of dealing with them in that manner is lost?

COLONEL ROYALL: Yes.

I think that if there was a right to repel them or shoot them or use any method of violence upon them because they were apparently invading our country, after that appearance disappeared and they got into the ordinary commerce of human beings in the country, you could not shoot them.

MR. JUSTICE JACKSON: That is like the case of a criminal whom you might shoot at in order to stop the commission of a crime; but when he has committed it, he has a right to trial?

COLONEL ROYALL: That is correct.

That is my point; except that I do not concede the crime; I am conceding only the appearance of crime.

MR. CHIEF JUSTICE STONE: The question here is what he is charged with.

COLONEL ROYALL: Well, sir, that brings up another question.

MR. JUSTICE FRANKFURTER: I think it really would help if you laid it down in the way in which your trend of thought will travel.

COLONEL ROYALL: I shall do so as soon as I can.

MR. CHIEF JUSTICE STONE: I will join in that.

COLONEL ROYALL: Second, the President's Proclamation, which assumes to deny the right of the petitioners to maintain this proceeding, is unconstitutional and invalid.

Third, the President's Order, which assumes to appoint the alleged Military Commission, is unconstitutional and invalid.

Fourth, the President's Order, relating to the alleged Military Commission, is contrary to statute and, therefore, illegal and invalid.

Fifth, the petitioners are entitled to be tried by the civil courts for any offenses which they may have committed.

MR. JUSTICE BLACK: You have in your brief a breakdown as to the constitutionality of the charges and their validity?

COLONEL ROYALL: Yes.

May I answer that in this way, Mr. Justice Black: We do not follow these five propositions throughout our brief in the order of one, two, three, four, and five; we deal with the substance of these propositions under nine headings which are entered in the index, and we deal in the third division of our brief with the question of the jurisdiction of a military commission over the offenses charged, which included both statutory and constitutional considerations.

Under the fourth division of our brief we deal with jurisdiction over the person.

That involves both statutory and constitutional considerations.

The fifth subdivision of our brief deals with the invalidity of the Proclamation.

That deals with both the constitutional and statutory provisions.

The sixth division called attention to the portions of the Order which conflicted with the statutes.

That involves no constitutional questions but merely questions of statute.

The same is true of the seventh and eighth divisions.

They involve merely statutes and common law, but do not involve the Constitution.

That is the only way in which I can answer your question.

It is not very clear that way, but that is the way it happens to be presented.

I want to follow in the argument whatever course the Court prefers.

I do not mind doing so by answering inquiries.

I have here a discussion of this matter in somewhat the order outlined in the brief, and if I may be permitted to do so, I should like to start on that, unless the Court prefers some other procedure.

On the question of Haup’s citizenship, which I shall not mention in any great detail, we set out the facts on pages twelve to fifteen of our brief, and those facts are set out in more detail in the stipulation which has been filed with the Court.

Our contention is that Haupt, having been a citizen and not having lost his citizenship in any of the ways prescribed by statute, which is 8 U.S. Code 801 and 802, he remains a citizen of the United States.

On the question of whether an alien is entitled to enter our civil courts for any purpose, leaving out of consideration for the lime being the President's Proclamation-that is, whether an alien enemy is entitled- we state as our position that there is no decision, so far as we know, which denies an enemy alien the right to enter the courts in the absence of a proclamation.

We shall deal with the proclamation later; we have cited authorities, we think, supporting that.

There is a line of authorities, one of which we cite and one of which the prosecution cites, and from which we draw opposite conclusions, that holds that an alien enemy can enter the court to determine whether he has been properly interned as an alien enemy.

In other words, the jurisdictional facts, so to speak, and the ultimate facts are the same.

That necessarily presents a confusing situation, but the Court in both those cases dismissed the petition on the ground that the petitioner had failed to make out his case and not on the ground that he did not have a right to institute his action.

Therefore, we think that the decision cited by them-I think they cite it at about page 19 of their brief-and the decision which we cite in our brief both lead to the conclusion that where our courts have acted, they have permitted an alien enemy to sue.

It seems inconceivable to us that, under any system of democratic government, any person in America should be totally deprived of his right to protect his liberty.

It would seem to us that it would require a rather express statute or express decision of the Court to reach that result.

I know from the brief of the respondent that he relies largely on English cases.

We have not had an opportunity to examine carefully into those cases, but we have learned that England has a series of statutes which cover the situation and which we have referred to in part in our brief.

MR. CHIEF JUSTICE STONE: Are those English cases habeas corpus cases?

COLONEL ROYALL: I am not certain about the English cases.

THE ATTORNEY GENERAL: Some of them are.

COLONEL ROYALL: Some of them are.

It is impossible to tell from the citation what the exact facts are.

They are cited by the prosecution.

We have not had the opportunity, having just received their brief this morning, to read it.

I have to judge by what is stated in the brief.

The first two cases are the American cases, which are the ones I have summarized before, an application by an alien enemy to get out of internment.

Another distinguishing feature, aside from the possible and probable statutory basis for these English decisions, is the fact, of course, that England does not have a written constitution, and there is considerable difference in the detail of what the rights are to enter civil courts.

It will be noted in those that they refer to habeas corpus as a prerogative right for subjects.

I do not know what the significance of that term is or how it differs from our constitutional right to the writ of habeas corpus, but I believe there is a difference and that the constitutional right is more explicit and complete.

MR. CHIEF JUSTICE STONE: If these men had been indicted in the usual course in the civil courts, as distinguished from military tribunals, they would have made a defense in those courts?

COLONEL ROYALL: Yes, sir.

MR. CHIEF JUSTICE STONE: Would their right to make a defense extend to the right to appeal to the appellate jurisdiction of those courts for habeas corpus in order to make their defense effective?

COLONEL ROYALL: I think, sir, in the absence of some statute or valid proclamation-and we do not think this is valid- they would have that right.

I think an alien enemy has a right to enter the courts in order to protect his liberty.

MR. JUSTICE FRANKFURTER: There might be a difference.

If the Government chose the civil route, then presumably it chose the whole route; and therefore, if the Government chose to indict enemy aliens in the civil courts, it would be strange indeed to argue that after a conviction they could not appeal, on the theory that they could not enter the higher court.

It makes a difference there.

COLONEL ROYALL: I can see how there might possibly be a difference.

There are no cases in either brief, I think, which present that situation.

The cases I cited a moment ago do not present that situation.

They are where the entrance into the court was to challenge an administrative determination that they were alien enemies and had to be interned.

MR. JUSTICE FRANKFURTER: But they were the prime movers, were they not?

They initiated the proceedings?

COLONEL ROYALL: They initiated the proceedings; that is right.

MR. JUSTICE JACKSON: Can you, even for legal purposes, classify all the enemy aliens in one basket and determine their rights in that way?

Can there not be a difference between an enemy alien who resided here in peacetime and who was caught here in war, who has given no evidence of hostility to the country there are cases of thousands of them-and the situation that your clients are in?

It seems to me there is quite a difference in the classification of alien enemies.

COLONEL ROYALL: I think that distinction might be drawn, but we do not think it is proper.

We think that all alien enemies, no matter what their status, are entitled to enter the courts to protect their liberty, unless there is a statute or a valid proclamation to the contrary.

MR. JUSTICE JACKSON: Would your contention go so far as to contend that if a regiment landed and marched into this country the members of that regiment have the right to resort to the courts, and that if they were captured they could not be treated as prisoners of war?

COLONEL ROYALL: Of course, prisoners of war might fall into a different classification.

MR. JUSTICE JACKSON: If they had uniforms on.

If they had uniforms off, they are, nevertheless, under the war power to be dealt with, are they not?

COLONEL ROYALL: I do not think so.

Prisoners of war have a special classification, and if they lose some rights they also gain some much more valuable rights in practice, because they are entitled to be treated as prisoners of war.

MR. JUSTICE BYRNES: Your contention is that if the Fuehrer and seven generals of the Army of the Reich should land from a submarine on the banks of the Potomac, having discarded their uniforms, they are entitled to every right you have discussed in the application for a writ of habeas corpus and to require an indictment by a grand jury under the Constitution?

COLONEL ROYALL: My argument would have to carry that fact, and does.

MR. JUSTICE JACKSON: I suppose that a uniform was a means of identifying the armed Forces.

I think under the conventions that this country has entered with others, a man loses rights by taking off his uniform rather than gains them, and I suppose that it was for that purpose that we had the second international convention at The Hague about the rights of men in uniform.

COLONEL ROYALL: He does not lose any procedural rights.

He loses some substantive rights.

MR. JUSTICE JACKSON: Well, it is always hard for me to tell what the difference is when they lead to the same thing.

COLONEL ROYALL: No, sir; I think there is a very great difference in these particular circumstances.

What he does lose is a right to be treated as a prisoner of war.

A prisoner of war has a right to receive his pay, to receive the same pay, and to be treated approximately as a soldier of our nation is treated, with the restriction that he is detained.

That is, in general, the fact.

If he takes off his uniform he loses that privilege.

MR. JUSTICE FRANKFURTER: He forfeits his standing as an honor able belligerent.

COLONEL ROYALL: But that does not indicate that he loses his standing as a party in the courts.

MR. JUSTICE JACKSON: Well, if he ever got into a position to have such a standing - but when does an invader get into a position to have such a standing?

That is what I cannot follow.

COLON EL ROYALL: It is not a question of gelling in there.

MR. JUSTICE JACKSON: Just because he is in the territory?

COLONEL ROYALL: Because he is in here, yes, sir; because he is a person in America.

Then, in the absence of some definite rule to the contrary, he is entitled to enter the civil courts.

That is the position we take.

MR. JUSTICE REED: Does that mean that every spy is entitled to be heard by the civil courts?

COLONEL ROYALL: No, that would not mean that every spy is entitled to be heard by the civil courts, because there is a specific statute which deals with spies.

MR. JUSTICE REED: But you are charged with spying, are you not?

COLONEL ROYALL: We do not think so.

MR. JUSTICE REED: What about the specifications?

COLONEL ROYALL: We do not think they charge spying.

MR. JUSTICE FRANKFURTER: In your answer to Mr. Justice Reed's question, your reliance is on the statute rather than on any constitutional limitation?

COLONEL ROYALL: Yes, sir, in that particular instance.

Where there is a statute as specific as that statute is on spying, and as well established, then I think that under the circumstances of that particular statute there is no question of its constitutionality.

There are a lot of circumstances that enter into that.

I can go into those at this point, if you desire.

MR. JUSTICE FRANKFURTER: Let me see if I understood what you said.

Referring to a person in nonmilitary clothes, whether a citizen or an alien enemy-an American citizen, let us say caught spying on behalf of the enemy; your answer to Mr. Justice Reed was that there was a statute which makes that a military offense?

COLONEL ROYALL: Yes.

MR. JUSTICE FRANKFURTER: Do I understand that to be the answer?

COLONEL ROYALL: That is right.

It makes it a military offense, triable by a military commission.

MR. JUSTICE FRANKFURTER: Regardless of the question that was raised by the Chief Justice as to martial law?

An American citizen caught spying in the city of Washington, for example, according to your view, is subject to a military trial?

COLONEL ROYALL: The statute so says.

MR. JUSTICE FRANKFURTER: Is that statute valid?

COLONEL ROYALL: I think that statute is valid.

We could not argue otherwise.

But the statute has an essential element that is lacking in this case, and I do not think that a statute or a proclamation providing for the trial of these men is valid.

MR. CHIEF JUSTICE STONE: That is, the statute is qualified by providing that it be near a fortified place or other military establishment?

COLONEL ROYALL: That is right.

MR. JUSTICE FRANKFURTER: What you are saying is that that which Congress can take out of the constitutional provisions by statute, the President as Commander-in-Chief cannot take out of civil statute by military proclamation?

COLONEL ROYALL: That is correct, because the Constitution gives the right to Congress to do so.

Under the First Article, it grants an exception from the civil process in the case of the Army and Navy.

That is Article I, Section 8.

MR. JUSTICE FRANKFURTER: The case I put to you was not that.

Perhaps you misunderstood me.

I was not thinking of a member of the armed forces engaged in spying; I was thinking of a civilian engaged in spying.

COLONEL ROYALL: We think that “land and naval forces” goes a little further than members of those forces.

MR. JUSTICE FRANKFURTER: “Land and naval forces” means anybody in the land and naval forces.

COLONEL ROYALL: No, sir.

MR. JUSTICE FRANKFURTER: Would you mind drawing the line?

COLONEL ROYALL: Yes, sir.

It means anyone who affects land and naval forces in the actual theater or zone of combat operations.

MR. JUSTICE FRANKFURTER: Where did you get that from?

COLONEL ROYALL: From common law and established decisions drawing that distinction.

MR. JUSTICE FRANKFURTER: And where do I find what is a theater of operations?

COLONEL ROYALL: Well, in this particular case we think you find it rather specifically under the stipulations, because the stipulations show, as we interpret them, that originally the Eastern Seaboard was designated as a theater of operations by the United States Army; and then, on the 18th day of March, 1942, they transferred it from a theater of operations to the interior classification, and that that was the condition at the time of this landing.

MR. JUSTICE FRANKFURTER: Cannot the enemy determine what the theater of operations is by being the aggressor?

If a parachutist should come into this building or near this building, would this not be a theater of operations?

COLONEL ROYALL: I would think it would be, sir.

MR. JUSTICE FRANKFURTER: Well, why was not this made a theater of operations by the landing of the U-boats?

COLONEL ROYALL: Of course, the U-boats did not land; but you mean the men from the U-boats?

MR. JUSTICE FRANKFURTER: Yes; the area of the U-boat landing.

COLONEL ROYALL: They came unarmed.

They came with explosives, of course, but they did not engage in any actual combat operations.

MR. JUSTICE FRANKFURTER: I would like to know what “unarmed” is.

You mean there was nobody there militarily resisting?

COLONEL ROYALL: There was nobody there militarily resisting, and there were no instructions to or intentions to do anything at that point except bury the explosives, which could not be more than the preparation to do something.

It could not even be an attempt.

MR. JUSTICE FRANKFURTER: Does “theater of operations” therefore mean reciprocal shooting?

COLONEL ROYALL: Not necessarily.

But a theater of operations might be created by an armed forces immediately intending to engage in combat, if necessary.

Now, that is the definition that I-

MR. JUSTICE FRANKFURTER: How about unilateral combat, as it were?

COLONEL ROYALL: I am not familiar with that.

MR. JUSTICE FRANKFURTER: Suppose parachutists or other people are landed and they do mischief on their own, secretly, which is the purpose of surprise.

Would that mean combat?

Does “combat” mean that it must be dual?

Does “combat” mean an announcement that you are going to carryon military operations?

COLONEL ROYALL: Not necessarily an announcement.

I think your question there is almost on the line.

MR. JUSTICE FRANKFURTER: Safely on your line?

COLONEL ROYALL: Well, sir, I could not even say that.

But I think that is almost on the line.

MR. JUSTICE FRANKFURTER: What I meant was, are your facts different from the facts that you and I have been talking about?

I meant to deal with your facts.

COLONEL ROYALL: They are different in this respect.

The stipulation shows that these men came ashore with explosives and buried them and left and were apprehended at varying periods, some of them in a week or so.

MR. JUSTICE JACKSON: They did not go to any agency and say, “We got away from the Germans.

Thank God we are free, and we will tell you where we buried them.

COLONEL ROYALL: No, sir.

If they had done that, there would not have been this litigation.

MR. JUSTICE JACKSON: Not having done that, are we to assume that their intentions were innocent, when they came ashore with a lot of explosives?

COLONEL ROYALL: I was not talking at this particular stage about their intentions.

I was talking about the physical facts to which I understood Mr. Justice Frankfurter's questions were directed.

MR. JUSTICE FRANKFURTER: Would you say there would be a difference or that the case would be different if, instead of burying explosives, they had landed under cover of darkness in an out-of-the-way place and had buried tanks or planes for future use?

Would there be any difference?

COLONEL ROYALL: There might be a degree of difference there, but it certainly would be very similar, I think.

MR. JUSTICE FRANKFURTER: Yet you would say that that is outside of the conflict or theater of operations?

COLONEL ROYALL: I would, sir, because that is, at the most, a preparatory stage and not a stage of actual combat.

MR. JUSTICE JACKSON: It is not your contention that the President should wait until these explosives are set off before we do anything with these persons, whatever they are, invaders or what-not?

COLONEL ROYALL:

MR. JUSTICE JACKSON: He has taken them in possession and has them in possession of the General, and you say that is illegal and that we should release them?

COLONEL ROYALL: That is right.

Sir.

MR. JUSTICE JACKSON: What I do not get is how it is to be expected, if they were doing what you admit they were doing.

That there would be complacency on the part of the Army or the FBI.

COLONEL ROYALL: No, sir, we are not arguing for complacency, any more than we would argue that if a man is on a murder rampage we should be complacent.

He can be apprehended or he can be killed; but it does not deprive him of the rights to go into a civil court.

MR. JUSTICE REED: May I pursue the question of spying a little further?

COLONEL ROYALL: Yes, sir.

MR. JUSTICE REED: I understood you to say that the statute with regard to spying is unconstitutional when applied by a military tribunal.

COLONEL ROYALL: I do not think I could argue otherwise.

MR. JUSTICE REED: You say that you do not understand that these people are spies?

COLONEL ROYALL: That is what I said.

MR. JUSTICE REED: Do we have to decide whether they are spies or not, or is it sufficient that they are charged with being spies?

COLONEL ROYALL: I do not think the charge is sufficient to preclude this Court from making inquiry, if that is a jurisdictional, and we think that it is.

In this case, however, from the stipulations, we think it affirmatively appears that they were not engaged in spying.

MR. JUSTICE REED: Well, do we look at the stipulation in testing the power of the Commission, or do we look at the charges that were filed against these defendants?

COLONEL ROYALL: Whichever you look at, we do not think they are charged with spying at all; and second, we do not think, if they are charged with spying, that the stipulation shows spying.

MR. JUSTICE REED: I have before me Charge 3, on page seven of your brief, which reads: acting for and on behalf of the German Reich, a belligerent enemy nation, were, in time of war, found lurking or acting as spies in or about the fortifications, posts, and encampments of the Armies of the United States.

COLONEL ROYALL: Yes, sir, but it goes further.

MR. JUSTICE REED: I did not understand you.

COLONEL ROYALL: I say, the charge includes more than that.

MR. JUSTICE REED: Well, but is it not your understanding that under those charges these persons are charged with spying?

COLONEL ROYALL: They are the exact words, or practically the exact words, of the statutes; but it adds: and went about, through, and behind said lines and defenses and about the fortifications, posts, and encampments of the Armies of the United States, in zones of military operations and elsewhere, disguised in civilian clothes and under false names, for the purpose of committing sabotage and other hostile acts against the United States, and for the purpose of communicating intelligence relating to such sabotage and other hostile acts to each other, to the German Reich, and to other enemies of the United States, during the course of such activities and thereafter.

Now, the charge of spying is defined by the Rules of Land Warfare and by such precedents as we have been able to find.

It requires some overt act toward obtaining information.

MR. JUSTICE REED: The statute, as I recall it, says “lurking in and around the fortifications.

COLONEL ROYALL: As a spy.

MR. JUSTICE BYRNES: And elsewhere.

COLONEL ROYALL: And elsewhere.

I am coming to that in a moment, sir.

That does not arise on the charge.

“Or elsewhere” arises on the evidence.

That is the first defect.

The second defect is that it does not allege-although purporting to allege the facts in considerable detail-an essential element, which is at least an attempt to obtain information.

MR. JUSTICE REED: You mean if you look at the fortifications that is not enough?

COLONEL ROYALL: It is not in the allegations that they looked at the fortifications.

It totally omits what we conceive to be an essential element of the charge of spying; that is, at least an attempt or endeavor to obtain information.

MR. JUSTICE BYRNES: The charge is, “.for the purpose of communicating intelligence relating to such sabotage. ”

COLONEL ROYALL: Yes, sir, for the purpose of communicating it, sir, but it does not appear that they went so far as to try to get any information.

In other words, we think the precedents show, and we have cited it in our brief, that in order to constitute the offense of spying, there must at least be some overt act toward obtaining information.

There is no charge of that, and we say the stipulations negative the existence of it.

MR. JUSTICE REED: Would you say piercing the lines of the American forces and coming onto the land and going into where there are fortifications is not a sufficient overt act?

Is that your contention?

COLONEL ROYALL: That is not a sufficient overt act for spying.

MR. JUSTICE REED: That is what I am talking about.

MR. JUSTICE BYRNES: What would be an overt act?

Spying and looking?

COLONEL ROYALL: Looking at something of a military nature and endeavoring to get that information.

MR. JUSTICE FRANKFURTER: Does not Charge 3 do that?

COLONEL ROYALL: That is the one we are talking about.

MR. JUSTICE FRANKFURTER: The portion of that charge I have reference to reads, “.were, in time of war, found lurking or acting as spies in or about the fortifications. ”

COLONEL ROYALL: I do not think you can stop there.

MR. JUSTICE REED: That is at least one element.

The others are additional to that.

MR. JUSTICE FRANKFURTER: You think what follows cuts that down?

COLONEL ROYALL: Yes, because it purports to set out the details.

That is the Act itself.

This is the specification.

The specification is supposed to specify the facts.

If they had stopped there would not have been any specification because they are the words of the statute.

To the extent that they specified, they failed to allege an essential element.

MR. JUSTICE FRANKFURTER: You think a charge of spying has to be more particular than a charge of murder in your State and mine?

COLONEL ROYALL: I do not think it does, but I think where it undertakes to be specific and omits an essential element, it is defective, and that is what we say here.

MR. JUSTICE JACKSON: Could they not amend the charges?

Let us say they are defective.

If they are illegally held for trial they could amend the charges, could they not?

COLONEL ROYALL: I think that would answer the fact that they might amend the charges, and there is a very liberal method of amendment in the military courts.

I do not believe that would answer the question unless we would concede that the mere charge of the violation of a statute is enough in itself to confer jurisdiction, which we do not concede.

MR. JUSTICE REED: If this was, in the view of the Court, a sufficient charge of spying, would that then bar any relief by habeas corpus, unless the Commission itself is invalid?

COLONEL ROYALL: Yes, sir, we think so.

We think so because we think it affirmatively appears from the stipulation in this case, not only that it is not properly charged but that the essential elements were in fact missing.

MR. CHIEF JUSTICE STONE: Suppose it were true that the charge is not proper and a conviction followed.

Would that be any basis for review?

In other words, can we correct the errors of a military court, assuming it has the authority to act as such?

COLONEL ROYALL: You cannot do that, sir.

In other words, habeas corpus, of course, is not a method of reviewing the facts.

MR. CHIEF JUSTICE STONE: So that if the Commission makes errors, it is subject to a review, as provided by the Articles of War, by both the Commanding General and the President?

COLONEL ROYALL: Yes, sir; but may I say this, sir?

We think that where the fact itself is a jurisdictional fact and where it appears on the records of this Court-I say it does not appear-that the jurisdictional fact does not exist, that then you cannot afford relief.

MR. CHIEF JUSTICE STONE: I do not insist that it has a bearing, but it is familiar law that you cannot on habeas corpus examine the sufficiency of an indictment after conviction has been had, and I suppose there must be some scope for allowing the military tribunal to determine the sufficiency of the charge and the sufficiency of the evidence to support it.

COLONEL ROYALL: I think that must necessarily be true, sir.

But I think there is a difference in this case from the case that the Chief Justice calls to my attention, and it lies in this fact.

Here we are dealing with an unusual type of tribunal.

So far as the Articles of War are concerned, there are only two Articles of War which provide for a military commission to try the offenses.

One is Article 81 and the other is Article 82.

MR. CHIEF JUSTICE STONE: May I get my eyes on 81 and 82?

COLONEL ROYALL: Do you have a Court Martial Manual there?

MR. CHIEF JUSTICE STONE: Yes.

COLONEL ROYALL: I think you will find that more convenient to use in discussing these Articles of War, and it appears on page 221 of that volume.

MR. JUSTICE BYRNES: What I do not understand is your position with reference to Article 82.

The specification certainly includes the very language of Article 82, does it not?

COLONEL ROYALL: That is correct, up to a point.

MR. JUSTICE BYRNES: Up to what point?

Does it not contain the detailed charges?

COLONEL ROYALL: Yes, sir; but, as I said a moment ago, the purpose of a specification in a military court is to go further than merely to charge a violation of the statute.

The charge does that.

Charge 1 charges a violation of the 82nd Article of War.

The language, through the word “elsewhere,” is merely repetition of what has already been said when you say “violation of the 82nd Article of War. ”

MR. JUSTICE FRANKFURTER: Well, could not the pleader have stopped there and have alleged adequately?

You are addressing one who is ignorant of these matters; but is the requirement of criminal pleading before a court martial stricter than it is before an ordinary civil court nowadays?

COLONEL ROYALL: I am going to give you the best answer I can to that.

I think I will ask my associate.

I do not know very much about courts martial.

I have been in the Army a little less than two months since the last war.

Colonel Dowell has called my attention to a page, which I will mention.

My recollection is that there is in the Court Martial Manual- and if I am not correct, Colonel Dowell, please correct me-a form for specifications under certain charges; and I believe that on the charge of spying it is stated to be merely the words of the statute- that is, the declaration against interest-but I think that is-.

MR. JUSTICE FRANKFURTER: One would assume that that would be so, in accordance with fair and decent pleading nowadays.

Now, if that is so, I am really troubled by the kind of discrimination you try to make with respect to Charge 3.

COLONEL ROYALL:

MR. JUSTICE FRANKFURTER: You think that they took away what they first gave?

That is your argument?

COLONEL ROYALL: Yes, as I said before.

MR. JUSTICE BLACK: As I understand it, you do not attack the validity of Article 82?

COLONEL ROYALL: No, sir; we cannot attack it.

MR. JUSTICE BLACK:

COLONEL ROYALL: Or a military commission.

MR. JUSTICE BLACK: - under the penalty of a sentence of death on a charge that he has been lurking around somewhere within the United States?

You raise no question whatever about that?

COLONEL ROYALL: Well, sir, I do raise a question, as Justice Black has stated.

We say this, that the mere charge, in the first place, does not authorize him to be tried by a military commission where it affirmatively appears, by stipulation, that he is not guilty of it.

MR. JUSTICE BLACK: Yes, but that is trying guilt or innocence.

COLONEL ROYALL: I do not think it is, sir.

MR. JUSTICE BLACK: You think you would have to show that he is there and guilty before the Commission has jurisdiction; then that evidence is heard and any fact determined by the Commission?

COLONEL ROYALL: I would not have to go that far, sir, on the death issue.

But I do say that where it affirmatively appears in this record that he is not guilty of spying and it affirmatively appears that the jurisdictional facts do not exist, then they do not agree.

MR. JUSTICE FRANKFURTER: What you mean by “jurisdictional fact,” in the sense in which you use it, is spying in and around places such as posts, encampments, and fortifications, or other territorial places; is that right?

COLONEL ROYALL: That is one of them.

That is one of the elements that is missing, and that is the thing we talked about a moment ago with reference to the theater of operations.

They are very closely allied and probably the same thing.

MR. JUSTICE FRANKFURTER: In other words, if the charge was that he was spying in places that were not theaters of operations or encampments, you would say that on the face of it negatives the charge in Article 82?

COLONEL ROYALL: That is right.

I believe Mr. Justice Byrnes asked me about the word “elsewhere.

We concede the validity-the constitutionality-of Article 82 if it is limited to the type of location specified in the definition of spying- I mean specified in the statute itself-that is, around or near specific military installations of some kind.

MR. JUSTICE REED: Does that carry you to the point that the spying must be within the limits of military reservations?

COLONEL ROYALL: No, sir, I do not think it would be that narrow.

MR. JUSTICE REED: Do I understand that these people were on Long Island?

COLONEL ROYALL: That is right.

MR. JUSTICE REED: And I suppose we can take judicial notice of the fact that there are many camps on Long Island?

COLONEL ROYALL: Yes, sir.

MR. JUSTICE REED: Is it your position that they were too far away to be able to make any effective investigation or espionage around these places?

COLONEL ROYALL: There are two considerations there.

The first is the absolute geographical mileage.

If a man were a distance of ten miles, we will say, and going toward an emplacement for a purpose, it might have a little different character than if a man were going to buy groceries.

MR. CHIEF JUSTICE STONE: On the question of nearness, who is to assume that?

Assuming that this is a charge of spying, do you think we should look at the record and see if the evidence sustains it, and if it does not sustain it are we to assume that the Military Commission would not so find?

COLONEL ROYALL:

MR. CHIEF JUSTICE STONE: On a writ of habeas corpus you can bring every element of prosecution, under an Article of War, to this Court, on that basis, on the assertion that the evidence did not support the charge.

COLONEL ROYALL: I do not think you have to go that far, sir.

MR. CHIEF JUSTICE STONE: You mean an element of proof?

COLONEL ROYALL: No, not an element of proof; an essential element of the offense is lacking.

MR. CHIEF JUSTICE STONE: On the proof?

COLONEL ROYALL: On the stipulation.

MR. CHIEF JUSTICE STONE: Is that stipulation laid to the proof or to the specification?

COLONEL ROYALL: It is laid to the facts themselves.

MR. CHIEF JUSTICE STONE: That would be, of course, a matter of proof.

MR. JUSTICE FRANKFURTER: You say that this was not in a fortification and nowhere near a fortification?

COLONEL ROYALL: That is right.

MR. JUSTICE FRANKFURTER: You cannot have spying in the Mellon Art Gallery?

COLONEL ROYALL: No, sir.

You can have espionage, which has a different meaning from military spying.

MR. JUSTICE JACKSON: Could you not spy on an industrial plant?

COLONEL ROYALL: I do not think so.

MR. JUSTICE JACKSON: You think that the definition of spying would differ where it was done on an industrial establishment, which in modern warfare is very important?

COLONEL ROYALL: I think that would be espionage.

MR. JUSTICE REED: Suppose the plant were making guns.

COLONEL ROYALL: I still do not think that would be military spying.

MR. JUSTICE FRANKFURTER: The reason you take that position is that, as you say, the permission of trial by military commission is unwarranted constitutionally by Article I, Section 8, and also by the Fifth Amendment?

COLONEL ROYALL: Yes, the Fifth Amendment.

MR. JUSTICE FRANKFURTER: You think they have restricted meanings, the restriction being-.

COLONEL ROYALL: Land and naval forces.

MR. JUSTICE FRANKFURTER: Land and naval forces?

COLONEL ROYALL: That is right.

MR. JUSTICE FRANKFURTER: That is your argument?

COLONEL ROYALL: That is our argument.

Now, let me answer the question with regard to an industrial plant, because, that is relevant to this inquiry here.

There is the crime of espionage, and I think it is very material that Congress has enacted a law covering the crime of espionage and has made a distinction between time of peace and time of war.

In other words, they have legislated for this very circumstance that is confronting us today and have expressly and explicitly provided for punishment for just what these men are charged with today; and it is stipulated they did, in the most unfavorable light to them, and those are matters which have to be tried in civil courts and not in military commissions.

MR. CHIEF JUSTICE STONE: What is the penalty?

COLONEL ROYALL: In the case of sabotage it is a maximum of thirty years, and it is thirty years in the case of espionage other than military, and the death sentence is discretionary.

Is that correct, Colonel Dowell?

I think that is correct.

If I am not correct, I want to be corrected.

MR. JUSTICE FRANKFURTER: Colonel Royall, I suppose in this connection, the denial that the proclamation of July 2nd is a declaration of martial law bears upon your present argument?

COLONEL ROYALL: It very materially bears on it.

Do not think I am complaining about the questions-I do not mind them at all-but I have not been able to go at these things very logically, and sometimes I have had to jump ahead of my story.

Coming back to the Congressional enactments, I think they have a very material bearing, both legally and actually, in this connection.

Here Congress has legislated on the subject, on the very thing that these men have done, at the most; and the difference in the case of these petitioners is a difference between a maximum of thirty years and a mandatory death sentence.

That is the difference between them if they are guilty of spying.

So it is a very material thing for them.

Congress thought thirty years was enough.

MR. JUSTICE REED: Has Congress legislated on spying?

COLONEL ROYALL: Yes, sir, espionage.

MR. JUSTICE REED: I know, but has Congress legislated on spying?

COLONEL ROYALL: Yes, sir.

I do not know whether it is called spying or military espionage.

Congress has enacted or has an enactment-.

MR. CHIEF JUSTICE STONE: They adopted Article 82.

COLONEL ROYALL: Article 82, of course, is on spying, but you mean for ordinary criminal-.

MR. JUSTICE REED: For the civil court?

COLONEL ROYALL: They have a charge of military espionage, I think.

Maybe these gentlemen can help me on this.

MR. CHIEF JUSTICE STONE: We will take a recess now.

You can answer that later.

MR. CHIEF JUSTICE STONE: You may proceed.

COLONEL ROYALL: It was contended by the respondent that the effect of the Colonna case, comparatively recently decided under the Trading with the Enemy Act, was that of depriving enemy aliens of their rights to go into the civil courts.

The fallacy of that argument, as we see it, is that that is a statute which deals solely or primarily with commercial transactions.

It does not, either by its terms or its obvious purpose, seek to deal with the situation involving any proceeding in the nature of habeas corpus or any proceeding involving liberty of a citizen.

I think we have covered that sufficiently in our brief to enable me to pass over it without further comment.

MR. CHIEF JUSTICE STONE: Assuming that you are right in your contention that the President can derive no authority under the spy section, Section 82, is it contended that he would have power as Commander-in-Chief in time of war or emergency to suspend the writ in the case of persons situated as these are?

COLONEL ROYALL: Yes, sir.

They base their contention on Article 82, which we have discussed.

MR. CHIEF JUSTICE STONE: They merely say that the President has authority, as Commander-in-Chief of the Armies.

But suppose these men, not wearing uniforms, came to the country armed, prepared to further the war: Would you say that the President could not order them tried?

COLONEL ROYALL: I would say that he could not order them tried by a military commission, unless they were either committing an offense under Article 82-.

MR. CHIEF JUSTICE STONE: And Article 81?

COLONEL ROYALL: I have not discussed 81-or under what is known as the Law of War.

MR. CHIEF JUSTICE STONE: That is the point I want to raise.

Here are men who are not entitled, by all the recognized laws of war, to the privileges of men wearing uniforms and engaged in combat.

Assuming they came in bearing arms and were prepared to use them, has the President constitutional authority to appoint a commission to try and condemn them and, in connection with that, to suspend the writ?

COLONEL ROYALL: We do not think, sir, that he has any constitutional authority to suspend the writ of habeas corpus in the absence of an express statute.

The Congress is the only one that can authorize the suspension of the writ under the first Article and under the Fifth Amendment.

We further say that, while there seems to be one decision cited by the prosecution which says there is such a thing as the Law of War, there is serious question as to whether there is any such body of law applicable to courts or military tribunals.

There is no common law of crimes in Federal jurisdictions; and this is a sort of common international law.

We think there is a serious question as to whether there is any such offense as the violation of the Law of War.

But if we concede that there is, we are confronted with exactly the same situation that we are confronted with under Article 82 and also 81, although I have not discussed 81, and that is that the limit of the authority to suspend the writ of habeas corpus and the limit of the authority to provide for trial by a military tribunal is something that is so closely related to the land and naval forces or military forces that the offense has to be committed in the zone of military operations, which we have discussed before; and therefore, we say that there is exactly the same restriction upon the President as upon the Congress-moreso on the President, because he has to have the intervening help of a Congressional enactment.

But there is a requirement that it must be in connection with the land and naval forces, and that element is not only lacking, but affirmatively appears to be absent on the stipulation of the parties.

Further on the question of the right of these aliens-and I am having to travel backward a little because this was not covered in the questioning-the argument is made that under the language of the internment statute the President has authority to make this proclamation and to deprive these men of a right in the civil courts.

The language of the internment statute, if taken out of the statute and looked at without reference to its setting, would seem to indicate that that was true.

But a reading of the entire statute shows very clearly that it relates to the internment situation alone and does not intend to give the President any authority to issue a proclamation except in connection with the internment statute and its enforcement.

I am trying to avoid repetition on matters which have been covered by the questioning and to get to matters which have not been so covered.

On the question of the zone of operations, I have adverted to that briefly, but the stipulation on that is the reason 1 say that I think it affirmatively appears that this was not an offense so closely connected with the military and naval forces as to justify the exercise of the unusual jurisdiction of a military tribunal or to authorize the President to suspend the writ of habeas corpus, aside from his inability to do so because of the lack of a statute.

The meaning of this order of March 18 is explained in the testimony of Colonel Stephen H. Sherrill: The entire continental United States is divided into similar defense commands and so forth.

That testimony appears on pages 2745 to 2758 of the record.

He states, as I understand it, that the reason they have so transferred from the Theater of Operations to what is known as the Interior Military Department was because of its inherent nature and the fact that supply was an integral and important part of it.

Military commissions are mentioned in the Articles of War which are carried in the Manual for Courts Martial in several connections.

Articles 81 and 82 mention them.

That is a negative recognition of military commissions.

It does not affirmatively confer any rights upon them.

It does not create a crime.

It is not designed to create a crime, and it does not add in any way to the authority of the Executive in connection with military operations.

In connection with that section it clearly appears that, as stated Just before the recess, there are Congressional enactments in the form of criminal statutes covering the acts these people might have committed, under the stipulation; and we think it a very cogent Circumstance that, the Congress having legislated over the entire field, and the civil courts functioning in this territory, it is unnecessary and contrary to our theory of government to appoint a military commission to do what Congress has clearly indicated should be done by the criminal courts.

A question was asked as to the penalty for espionage.

My recollection about that was substantially correct.

The penalty for a criminal offense is a maximum of thirty years, except in the case of direct communication with an enemy; and that, of course, is differentiated from the mandatory death sentence in the case of spies.

MR. JUSTICE BLACK: Is there any indication that Article 82, in reference to spying, requires that he be considered communicating with the enemy?

COLONEL ROYALL: Yes, sir.

MR. JUSTICE BLACK: And the thirty year penalty to which you refer could be imposed, even though it were not for the purpose of communicating with the enemy?

COLONEL ROYALL: I think it is a question of direct communication.

The elements of spying- and it might be that this will be helpful to the Court in considering the arguments and questions before lunch-are stated pretty clearly on page 157 of the Manual for Courts Martial.

I suppose your page numbers are the same.

It is under the 82nd Article of War.

MR. JUSTICE BLACK: That is correct.

COLONEL ROYALL: And it is discussed also on page 18.

MR. JUSTICE JACKSON: What is the source of the definition of spying?

COLONEL ROYALL: The source of the definition of spying is the accepted rules as codified by the Second Hague Convention, and is carried in a publication known as Rules for Land Warfare, published by the War Department, and as administered by military courts martial over a period of years.

I understand that that is the basis of that definition.

MR. JUSTICE JACKSON: Do you rely on any part of that Treaty as an aid to your clients?

COLONEL ROYALL: No, sir.

I do not think it is binding.

I do not think it is binding to the effect that it would create a crime if one did not exist.

But it is persuasive on the definition of the word “spying,” which is a word that must be defined, because it does not contain the necessary elements for its own definition.

MR. JUSTICE BLACK: So far as Article 82 is concerned, is there any necessary relationship between the fact that one enters the country and the offense charged here?

COLONEL ROYALL: I do not think so.

MR. JUSTICE BLACK: So that so far as that section is concerned, it is the same as though there had been no invasion, as though they had not entered as they did.

COLONEL ROYALL: I think it could exist without that.

MR. JUSTICE BLACK: And it exists as to a citizen or a non-citizen?

COLONEL ROYALL: I would think so, sir.

I do not know of any distinction.

MR. JUSTICE BLACK: And the claim is that it has reference to anyone who is around a plant, lurking around a plant?

Does it go that far?

COLONEL ROYALL: No, sir.

I think it has got to be an actual military establishment.

It becomes espionage when it relates to industrial plants.

MR. JUSTICE BLACK: Is that the position of the other side?

COLONEL ROYALL: I do not think so.

They talk a lot about total war.

MR. JUSTICE JACKSON: The Hague Convention defines spies.

It apparently includes both soldiers and civilians, because it refers to soldiers and civilians carrying out their mission openly, and so forth.

COLONEL ROYALL: Perhaps Mr. Justice Jackson did not understand me.

That is what I intended to say to Mr. Justice Black, that it might apply to either.

MR. JUSTICE JACKSON: I got exactly the opposite impression.

MR. JUSTICE FRANKFURTER: Assuming that there is some discretion in the Commander-in-Chief in determining whether or not to convoke a military commission, whether or not there is the existence of what you call jurisdictional facts, the fact that so called spies were landed by enemy war vessel rather than prowling around in the streets of a city might make a difference.

From the point of view of the facts and circumstances, it may make all the difference in the world if people are landed by U-boats from an enemy country.

COLONEL ROYALL: Of course, you have to conceive that he had some element of discretion there; but I do not believe his discretion goes far enough to disregard the absence of an essential element where that absence affirmatively appears on the record.

MR. JUSTICE BLACK: If there is jurisdiction with reference to one who enters, would there or not be constitutional jurisdiction in reference to one who was a citizen and who was lurking around an industrial establishment?

What would that have to do with determining the vital effect of the power to order a commission?

COLONEL ROYALL: I do not think it would have any effect, unless there is a larger discretionary power in the Executive than we are willing to concede.

If it is sort of a judgment based on a lot of circumstances without any restrictions as to the exactly legal definitions, it might have some significance.

But I do not concede that to be the fact.

MR. JUSTICE FRANKFURTER: I put to one side the appearance on the face of the record that the circumstances in issue had nothing whatever to do with the conduct of the war.

The Attorney General stated that it might be that they had no relation to the conduct of the war.

Nevertheless, the President, as Commander-in-Chief, can call a military commission.

Putting that to one side, will you please tell me why I am wrong in seeing the practical outcome of the argument you just made and the answer you made to Mr. Justice Jackson that the only way to determine whether or not the President as Commander-in-Chief had a right to convene a military commission is for us to examine the whole proceeding before the military commission on the merits?

COLONEL ROYALL: I do not think you have to do that where there is a stipulation which makes it affirmatively appear that an element is lacking.

MR. JUSTICE FRANKFURTER: Would you mind reading exactly that portion of the stipulation which, in your view, negatives the existence of this fact?

COLONEL ROYALL: There is, first, the fact as to where they landed, on Amagansett Beach, Long Island, and Ponte Vedra Beach, Florida.

Then there is a stipulation on page seven that that was in the area designated as the Eastern Defense Command.

Then there is a stipulation which I read to the Court, transferring the Eastern Defense Command from the Theater of Operations.

Then there is the testimony, incorporated by reference in the stipulation, pages 2745 to, 2758 of the typewritten record, being the testimony of Colonel Sherrill.

MR. JUSTICE FRANKFURTER: What is the point of that?

What is the substance of it?

COLONEL ROYALL: The substance of it is that it was transferred from the Theater of Operations because it was thought that it more properly belonged in what is referred to as the Interior Military Department.

MR. JUSTICE FRANKFURTER: You referred to that, I believe.

COLONEL ROYALL: I think I summarized that correctly; and he referred to some Army publications which defined the functions of the various theaters of operation.

Referring to pages 2745 and 2758, there is nothing there that cannot be disclosed, I am sure.

One of his answers is this: A Field Service Regulation defines a theatre of operations as an area of the theater of war necessary for military operations and the administration and supply incident to military operations.

That is what it was transferred out of.

MR. JUSTICE REED: Do I understand that all of the Eastern Seaboard was transferred out?

COLONEL ROYALL: That is correct.

He said it was done largely because of the supply situation.

Q: It is true that the administration and supply really pertain to the Zone of the Interior, is it not, back of the theater of operations, and that the Zone of the Interior has the job of putting the supplies up to the theater of operations and on the front?

A: That is right.

Then he says that the theater of operations is nearer the fighting than the Interior.

MR. JUSTICE FRANKFURTER: Who was the highest military official who made the designation that this was not within the theater of operations?

COLONEL ROYALL: I think it was the Secretary of War.

It was the War Department.

MR. JUSTICE FRANKFURTER: The President defined it to be within the theater of operations?

COLONEL ROYALL: It is a long examination.

I do want it all before the Court, and I will be glad to read it: What is your official position?

A: I am on duty in the Operations Division, War Department, General Staff, in charge of the North American Theater Group.

Q: And particularly in charge of the Eastern Defense Command?

A: That is one of the subdivisions of my theater.

Q: I will show you defendant's Exhibit L and invite your attention to that portion of it which contains a certain letter, ‘Subject: Defense of Continental United States,’ the letter being dated March 18, 1942, and ask you if you are familiar with that (handing a document to the witness).

A: I am, yes, sir.

Q: The name of the Eastern Theater of Operations is changed to Eastern Defense Command.

The Eastern Defense Command will not be a theater of operations.

Will you explain to the Commission just what the reason for that order is and the effect of it?

A: Field Service Regulations defines a theater of operations as an area of the theater of war necessary for military operations and the administration and supply incident to military operations.

Now-Questions by Colonel Dowell: .

Q: Will you state the paragraph and page?

A: Paragraph 2, page I, Field Service Regulations.

That is the definition of the theater of operations.

Q: It is the reverse of that, I believe, isn’t it?

A: I beg your pardon?

Q: It is the reverse of that, isn’t it?

A: I think not.

Q: You said changing the Theater of Operations to Defense Command?

A: That is what 1 said.

The Judge Advocate General.

That is correct.

The Attorney General.

I think it will be easier to let him continue on with his testimony and then you can cross-examine him.

Questions by the Judge Advocate General: You may go ahead.

A: The term ‘theater of operations’ as pertaining to the eastern part of the United States was changed to that of the Eastern Defense Command on March 18th, because experience had indicated that the supply establishments, training centers, ports, and so on, should operate under the War Department rather than under the Commanding General of the Eastern United States.

That was the purpose for making the change.

MR. JUSTICE FRANKFURTER: Will you read that sentence again?

COLONEL ROYALL:

A: The term ‘theater of operations’ as pertaining to the eastern part of the United States was changed to that of the Eastern Defense Command on March 18th, because experience had indicated that the supply establishments, training centers, ports, and so on, should operate under the War Department rather than under the Commanding General of the Eastern United States.

That was the purpose for making the change.

MR. JUSTICE FRANKFURTER: Do I infer from that that this is a change made with reference to internal managerial matters?

COLONEL ROYALL: That would so indicate.

Q: So far as the tactical situation is concerned, is there any change?

A: Not at all.

Q: In a tactical sense is that still a theater of operations?

A: Yes, I think so.

The theater of operations, as I say, is a term that includes more than tactical operation; and the purpose for changing the name was to eliminate only those parts which had to do with supply establishments and administration.

Q: Is that the situation with the other defense commands?

A: That is the same.

Q: Is that the situation in Alaska, for example?

A: That is correct.

That is a defense command also.

Q: That is at the present time a theater of operations?

A: Well, operations are being carried on there.

Q: The Japanese are right there in possession of some of the Islands?

A: Some of them.

The Judge Advocate General.

That is all.

Q: What is the definition of 'defense command'?

Is it defined in your book there?

A: I have a definition here, which defines a defense command as a territorial agency designed to coordinate or prepare and to initiate the execution of all plans for the employment of army forces and installations in defense against enemy action in that portion of the United States lying within command boundaries.

I might say that each of the defense commanders has troops, both ground and air, assigned to him for the purpose of carrying out this mission of operations against the enemy.

Q: I take it the Eastern Defense Command comes under the definition of defense command, does it not?

A: Yes, sir, it does.

Q: Was Amagansett Beach a part of the theater of operations?

A: Part of the Eastern Defense Command.

We use that terminology, sir.

Q: From a tactical point of view?

A: Tactically, yes, within that area.

Q: Was it tactically a part of the theater of operations?

A: I must repeat again, the term ‘theater of operations’ is merely a definition which includes supply and administration installations.

We dropped that and adopted the other term.

However, tactical operations in the Eastern Defense Command were just as effective at Amagansett Beach as at any other point.

Q: And just as effective after this letter was issued as before it was issued?

A: Yes.

Q: How about Florida?

A: Florida is also part of the Eastern Defense Command.

Q: And from a tactical point of view, there was no difference in Florida than there was before the letter was issued?

A: None whatsoever, no, sir.

Q: I am referring, of course, to the letter of March 18.

A: I understand.

Yes, sir.

The Attorney General.

Cross-examine.

CROSS-EXAMINATION.

Q: Colonel, you have read the definition of a theater of operations from the Field Service Manual?

A: Yes, sir.

Q: Was that term properly applicable to what is now called the Eastern Defense Command?

A: So much of it except for that part which applies to administration and supply, which has been eliminated, and that is the reason for changing the title.

Q: It is true that the administration and supply really pertain to the zone of the interior, is it not, back of the theater of operations, and that the zone of the interior has the job of putting the supplies up to the theater of operations and on the front?

A: That is right.

Q: Now, the theater of operations is nearer the fighting than is the interior?

A: Yes.

Q: The determination was made that the supply situation in the Eastern Defense Command made that more properly part of the zone of the interior than the theater of operations, because of the supply functions involved; is that true?

A: That is right-training activities and things of that kind.

Q: Of course, if there is any fighting which takes place in the zone of the interior, that becomes a military operation.

We understand that.

That is true, but would that make it a theater of operations?

A: Well, I think so.

As soon as fighting took place there, yes; immediately that becomes factual.

Q: Wherever fighting was going on?

A: Yes.

MR. JUSTICE FRANKFURTER: Is it fair to say that the theater of operations as used in that testimony is operations by the United States rather than operations by the enemy?

COLONEL ROYALL: They say the enemy can make it a theater of operations.

MR. JUSTICE FRANKFURTER: The enemy can make anything a theater of operations?

COLONEL ROYALL: By an attack, yes; I think that is true.

MR. JUSTICE FRANKFURTER: Then, from the point of view of the President's constitutional power, would you say that the scope and content of his power is that which this country, for its own purposes, has defined as a theater of operations rather than the hostile acts of the enemy?

COLONEL ROYALL: I would judge that the definition of the War Department would be conclusive in the absence of some attack by the enemy.

MR. JUSTICE FRANKFURTER: Overnight the definition might be knocked into a cocked hat; I mean the act of the enemy.

COLONEL ROYALL: The act of the enemy can change anything, I suppose, into an actual battle front.

It could happen on the Mississippi, or in Colorado.

MR. JUSTICE JACKSON: Might it not be defined as a theater of operation for one purpose without being a zone of operation, as used in the definition of spies in the Hague Convention?

COLONEL ROYALL: Yes, I think that is conceivable.

MR. JUSTICE JACKSON: So that it is a question of searching around for the most technical definition or taking The Hague Convention’s term?

COLONEL ROYALL: I think the distinction is in our favor.

MR. JUSTICE JACKSON: You take the broader one?

COLONEL ROYALL: I think theater of operations is broader than zone of operations.

I think zone of operations means restriction to actual combat operations.

I think it is a narrower definition.

But I do not have any criterion to judge that by, because I do not think any court has ever drawn that distinction.

MR. JUSTICE ROBERTS: You were going to complete your discussion of the stipulation.

COLONEL ROYALL: The only other thing in the stipulation that I have in mind is that the whole United States is divided into similar defense commands.

Every part of it is.

Therefore the designation of it as a defense command has no significance at all.

That does not prove that it is a zone of operations.

If it does, then every part of the United States is, of course, potentially, in the event of attack, a zone of operations.

MR. JUSTICE FRANKFURTER: You agree with that, do you not?

COLONEL ROYALL: Potentially, it could be; yes, sir.

But I do not believe that until that event has happened any proclamation or any Congressional action can deprive the people of that area of the right to the civil courts.

MR. JUSTICE FRANKFURTER: The determination of whether or not that event happened lays a vast variety of modes of attack open to the enemy.

You do not have to have the landing of a tank force or an air force or a whole division.

Whatever may be the instrument that furthers the military purposes of the enemy, roughly speaking, may become a means by which he is operating.

Do you agree to that?

COLONEL ROYALL: No, sir; I do not concede that.

I think that is too broad.

That is not a military operation.

It may have some effect upon the military results, but a military operation means a battlefield.

That is the primary meaning of it.

It may be enlarged a little, but it cannot be enlarged to cover our whole industrial output.

Persuading a man to quit work in a plant may affect military operations; but I do not concede that such a man can be tried by a military commission.

MR. JUSTICE FRANKFURTER: Suppose a person in the military service of the enemy deposits a chemical in the Glenn Martin plant, whereby the whole thing explodes: Would you say that that enemy at that point was, within the lawful constitutional judgment of the President, so engaged in a military operation as to be triable before a military commission?

COLONEL ROYALL: I would draw the line perhaps more narrowly than would someone else, but I would probably say that the limit of definition is narrower.

In that particular instance, all I would say is that that is much more directly connected than are the facts of this case; but even then, I would not say that that was a zone of military operations.

MR. JUSTICE FRANKFURTER: If a German division marched on the Glenn Mart in plant, that would be a zone of military operations?

COLONEL ROYALL: There is no doubt about that.

MR. JUSTICE FRANKFURTER: What kind of a distinction do you have in mind?

COLONEL ROYALL: The distinction is one of military operations and industrial interference.

MR. JUSTICE FRANKFURTER: May I suggest to you that that makes the distinction turn on the antiquity of the mode?

COLONEL ROYALL: I can see that point of view; and that is the total war theory.

MR. JUSTICE FRANKFURTER: I have not used those words.

COLONEL ROYALL: No, you have not, sir.

But the total war theory is that anything that affects the war effort is a part of the war.

There has got to be some limit on that, or we have very few constitutional guarantees left when we go to war.

MR. JUSTICE FRANKFURTER: How about destroying all the grounded military planes?

COLONEL ROYALL: Somewhere between those two cases the line should be drawn, in our judgment.

MR. JUSTICE JACKSON: The British soldiers who burned Washington may have committed crimes which should have been punished under the law of the District of Columbia at the time, but they might also have been subject to military operations at the same time.

I do not get your assumption that because these things might have been prosecuted in the civil courts, where the same set of acts also bring the parties within the jurisdiction of military operations necessary to resist their efforts, they might not be dealt with in a military tribunal.

COLONEL ROYALL: I did not mean to make that assumption.

I do not take that position, because it certainly is true that a violation of military law may also be a violation of the criminal law, and the jurisdictions are not exclusive.

I do not urge it for that purpose.

MR. JUSTICE JACKSON: Then, all we have is the question whether your people were subject to military law, and the question of the jurisdiction of civil courts has no part in this?

COLONEL ROYALL: It has this part in it: It is persuasive.

It is persuasive of the meaning of the zone of military operations.

Here Congress has solemnly and carefully legislated for acts which it never had to legislate for, if military operations include everything that might affect the war; and it is persuasive that Congress drew a distinction between the penalty during war and the penalty in peacetime for sabotage and for various types of espionage.

That is not conclusive.

I do not mean to convey that impression.

But it is persuasive.

There must be some body of law which is not military, and Congressional action is persuasive on where that line could be drawn.

MR. JUSTICE FRANKFURTER: Could Congress authorize a military commission for precisely the actions charged in this proceeding?

COLONEL ROYALL: I do not think so, because they are met by the constitutional inhibition that I have previously mentioned.

MR. JUSTICE FRANKFURTER: Do you say that as to that which Congress can turn over to the military commission, the Commander-in-Chief can determine on his own?

COLONEL ROYALL: No, I would say that Congress could authorize him to determine it on his own account; but until it has done so, he has not that right, because the Constitution gives that right to Congress.

Article I relates to the legislative power.

May I, not seeking to avoid any further inquiry, advert to another feature of the case, which seems to us to be particularly clear and to remove from the realm of controversy upon constitutional grounds questions about the power of the President?

A military commission is dealt with in the Articles of War.

It is dealt with in Articles 81 and 82, and I have read to you Article 15.

That is the first thing.

It is our contention that if we concede that the President had a right to appoint a commission, and if we concede that these men have committed offenses which might be tried by a commission, yet the order in this case is invalid and the commission illegal, because there has been an express violation of that Congressional enactment.

That violation has occurred in three general ways.

In the first place, the order of the President itself is absolutely inconsistent with three provisions of the Articles of War.

In the second place, while the Article of War gives the President the right to prescribe rules, he has sought to delegate a portion of that right to the Military Commission, contrary to the provisions of the statute.

In the third place, the Military Commission, assuming to act under that delegation, has itself prescribed rules which are contrary to law.

The first of those positions is the clearest to us.

In our brief we discuss three violations of that provision.

The first relates to the vote by which a death sentence can be imposed, the second relates to the requirement of a formal preliminary investigation before trial can be had, and the third relates to the method of review.

The respondent has contended that Article 38 does not mean that all the provisions of the Articles of War shall apply to military commissions; the respondent contends that it merely means that those provisions shall apply to military commissions where military commissions are mentioned.

The difficulty with that is that none of the Articles expressly mentions military commissions, except Article 46-V” which in itself would be a sufficient mandate from Congress without Section 38.

Therefore, if the view taken by the prosecution is correct, that proviso would have no meaning at all; it must apply to something.

In other words, the language, “that nothing contrary to or inconsistent with these Articles shall be so prescribed,” must refer to something, and we say it refers to the Articles of War and the procedure outlined therein.

We seem not to be the only ones who had that opinion, because the President in his own Order said: under the Constitution and Statutes of the United States, and more particularly the Thirty-Eighth Article of War.

The prosecution must have thought that that was true, besides the President’s thinking so, because they had the Attorney General designated as trial judge advocate.

We think so, because the language is perfectly clear that the procedure must follow the Manual of Courts Martial and that no procedure can be prescribed for the Military Commission that does not follow the Articles of War and as construed in the Manual for Courts Martial.

MR. CHIEF JUSTICE STONE: You have not told us precisely the way in which this Commission and the rules under which it proceeds departed from that.

COLONEL ROYALL: I am starting to do that now, sir; but I wanted first to make clear that in our opinion Article 38 did mean that the procedure had to comply with these Articles.

Article 43, page 212 of the Manual, says: No person shall, by general court martial, be convicted of an offense for which the death penalty is made mandatory by law, nor sentenced to suffer death, except by the concurrence of all the members of said court martial present at the time the vote is taken, and for an offense in these Articles expressly made punishable by death; nor sentenced to life imprisonment, nor to confinement for more than ten years, except by the concurrence of three-fourths of all of the members present at the time the vote is taken.

In other words, under the Articles of War, which we refer to in Article 38, there must be a unanimous vote for the death sentence, or a three-fourths vote for a sentence of imprisonment for more than ten years.

The President’s Order says: The concurrence of at least two-thirds of the Members of the Commission present shall be necessary for a conviction .

- Which is thoroughly inconsistent with the Forty-Third Article of War.

MR. CHIEF JUSTICE STONE: Under that provision, the Commission could condemn the men to imprisonment.

COLONEL ROYALL: Well, it happens that with seven members, two-thirds and three-fourths do not work out the same.

I shall have to go back to fractions.

MR. CHIEF JUSTICE STONE: But regardless of that, if they did not impose the death sentence, it would be valid.

COLONEL ROYALL: No, sir.

Three-fourths is required for ten years' imprisonment, and the President’s order says two-thirds.

That may be the same thing for seven, but I do not think it is; I think there is a difference.

MR. JUSTICE JACKSON: You have to have a fraction in either case, and I do not know how you could have a fraction of an officer.

MR. CHIEF JUSTICE STONE: You could not unless you dismembered him.

COLONEL ROYALL: I was under the impression that it took five in one case and six in the other, and I think perhaps I am right about it.

I thought perhaps the Chief Justice had computed it and I was wrong.

MR. JUSTICE JACKSON: You raise the question at this stage of the proceeding, in any event.

Suppose you have a unanimous decision against you, no matter what the rule is that is applicable?

COLONEL ROYALL: I think that is a fair inquiry, but I believe there are two good answers to it.

MR. JUSTICE JACKSON: Then, you are twice as well off as I thought you were.

COLONEL ROYALL: One of them is-and this has arisen in this study of constitutional provisions-that where there has been less than a unanimous verdict, and the question has arisen, the courts have said in those instances- in some instances; I do not know whether in all-that although there was a unanimous verdict, it did not cure it, because it was impossible to tell as a practical effect how the result arose, from the fact that the commission knew or the jury knew, in that case, that two-thirds was enough, and the natural human tendency was to join in when it was useless to protest.

That has been pointed out, and it is one answer.

It is a very practical answer, Whether or not it is fundamentally sound, I do not know, but I rather think it is.

The other answer is this: that by this method of procedure and we have this statement in our brief; I do not think it can be successfully denied-this matter is to be transmitted directly to the President.

The defendants will never know what the finding of the Commission is, how the Commission voted, or anything else; therefore, we would not know any more about it if we waited than we do today.

It is not a question of knowledge; it is a question of the ability to assert our rights, and knowledge is prerequisite to it.

The point is that we are worse off under the requirement for two-thirds than if a unanimous vote were required.

MR. JUSTICE JACKSON: But you would not know the difference if you could not find out.

COLONEL ROYALL: Whether we knew the difference or not, it would be a difference, and that is a substantial right that has been violated.

The only thing knowledge has to do with it is the time when the right must be asserted, and we would never know whether we could assert it or not.

MR. CHIEF JUSTICE STONE: Would you know in the ordinary case of a court martial?

I do not quite follow you on whether you would know in an ordinary court martial.

COLONEL ROYALL: No, sir.

In an ordinary court martial it is customary.

I think it is in the Manual.

I always speak a little dubiously when I refer to the Manual for Courts Martial, but it is certainly the practice to advise defense counsel of, at least, the result before the review.

That is not the plan here.

MR. CHIEF JUSTICE STONE: You find something in the Order of the President which cuts off or estops that practice?

COLONEL ROYALL: Yes.

Now, the second matter of express violation is Article 70, which appears on pages 219 and 220.

Without reading it in detail, for it is rather lengthy, it provides for formal investigation before charges are preferred or filed.

MR. JUSTICE ROBERTS: That is, of a person subject to military law?

COLONEL ROYALL: Yes.

MR. JUSTICE ROBERTS: These men are not subject to military law; military law applies to the armed forces?

COLONEL ROYALL: Military law applies to the armed forces, but Article 38, if it has any meaning at all, as Far as that proviso is concerned, adopts for military commissions the procedure which is prescribed for court martial.

Otherwise that language has no meaning at all.

I do not recall the language about military law in there.

MR. JUSTICE ROBERTS: Yes.

I was wrong about it.

COLONEL ROYALL: We are not concerned particularly about the charges, because they were preferred by a person subject to military law; but this is tantamount to either a grand jury investigation or an investigation by a committing officer.

MR. JUSTICE JACKSON: Is there not a difference between a court martial and a military commission; under a court martial, are not these provisions we have had cited primarily For the protection of our own men in the armed services, to see that they do not get an unfair deal and that they have what we consider, under military circumstances, due process of law?

A military commission is for determining a matter of this kind, and it seems to me that your position is somewhat inconsistent when you say that these men are not subject to military trial at all and then contend, on the other hand, that they are subject to the regulations of court martial.

COLONEL ROYALL: There is no inconsistency there.

If they are not subject to military trial at all, the case ends there.

MR. JUSTICE JACKSON: Yes.

COLONEL ROYALL: But if they are subject to military trial, it does not Follow-.

MR. JUSTICE JACKSON: That you are entitled to a regular court martial.

COLONEL ROYALL: The point is that there is no inconsistency in the position because it is all based on the assumption and must be based on the assumption, which we do not want to espouse, that you will decide the other questions against us.

What you say, Mr. Justice Jackson, might apply as an argument in favor of making a difference between soldiers and aliens; but the unfortunate part is-or fortunate For us-that the statute is rather explicit on it and says that nothing contrary to or inconsistent with these Articles shall be prescribed for military commissions.

So, Congress might have made that distinction; but it has not done so.

That language means nothing at all unless it means that the rules for martial law apply to military commissions.

MR. JUSTICE FRANKFURTER: I am not saying that there is not Force in your argument, but I wonder if there is that compulsion about it that you indicate might be read to be attributed insofar as you deal with courts martial-nothing inconsistent with courts martial and the Articles of War shall be permitted.

Inasmuch as Article 43 explicitly deals with courts martial, and we are here not dealing with a court martial but with a commission, there is not any head-on collision.

You might argue persuasively, but there is not that compulsion.

COLONEL ROYALL: I think there is, for this reason: that there are no provisions in the Articles of War dealing specifically with the procedure of military commissions.

MR. JUSTICE FRANKFURTER: From which one may draw the inference that the President is not restricted, in the case of commissions, to the provisions for courts martial.

COLONEL ROYALL: Then you would have to say that this language has no meaning.

MR. JUSTICE FRANKFURTER: Yes, it has, because if he sets up a court martial, you could not apply any of the facts to Article 43.

COLONEL ROYALL: But Article 43 relates to all of them.

MR. JUSTICE FRANKFURTER: Courts martial, general or special.

COLONEL ROYALL: And military commissions.

Article 38 relates to all of them.

MR. JUSTICE FRANKFURTER: Yes, Article 38 does; but, as I say, there is no inconsistency in dealing with the matter.

COLONEL ROYALL: Well.

I still think that the inference is that unless the language there is designed not to refer to military commissions, it has no meaning.

MR. JUSTICE REED: If you are correct in that, there would be no occasion to mention military commissions at all; they would simply follow the court martial regulations.

COLONEL ROYALL: No, no; there are some things on which you could have a provision which would not be absolutely contradictory of the Articles of War.

I do not know well enough to discuss what the possibilities are, but that could arise.

However, passing that provision, Article 70, which deals with preliminary investigation, we come to Article 46.

In that there is an even more explicit contradiction.

MR. CHIEF JUSTICE STONE: The proviso is: “that nothing contrary to or inconsistent with these articles shall be so prescribed. ”

Would you include the regulation of courts martial, courts of inquiry, and military commissions?

COLONEL ROYALL: Yes.

MR. JUSTICE FRANKFURTER: Is there anything in the Articles of War that explicitly prescribes that unanimity is required in the case of a commission?

COLONEL ROYALL: No.

MR. JUSTICE FRANKFURTER: Therefore, since there is no provision that unanimity is required, is there any inconsistency between that provision of the President's Order and anything in the Articles of War, apart from that?

COLONEL ROYALL: Apart from Article 38, no, sir.

MR. JUSTICE FRANKFURTER: Therefore, inasmuch as there is nothing which deals with commissions, except the right to set up commissions, and there is nothing in the Articles of War which defines the punishment that commissions may impose or the mode of proof required, where is there inconsistency?

COLONEL ROYALL: Only in the construction of Article 38 which I adopt.

That is what it narrows itself down to.

I think perhaps I overstated something a moment ago.

I believe there are one or two of those Articles that do have some relation to military commissions.

MR. JUSTICE ROBERTS: They mention it in passing, but without prescribing anything.

MR. JUSTICE BYRNES: Does it not seem to contemplate a difference?

Article 15 provides that the provisions of these Articles shall not be construed as depriving military commissions of concurrent jurisdiction in respect to offenses that by the statute or the Law of War may be triable by military commissions.

Would not that seem to contemplate that nothing contained in these Articles applying to general courts martial should apply to military commissions and the execution of the power of the President to provide or prescribe regulations?

COLONEL ROYALL: I do not think, sir, that that follows, for this reason: That is not a method of procedure.

Article 38 deals with procedure.

This is jurisdiction.

I think you will find that Articles 23 and 27, on pages 208 and 209, do refer to certain matters of procedure before military commissions which would further militate against the position I am taking.

However, I still think that the implication is that military commissions have to act in conformity with the Manual for Courts Martial.

MR. JUSTICE ROBERTS: Article 46 does refer to that.

COLONEL ROYALL: I was coming to that.

The last one of the conflicts is Article 46.

There, it seems to me, we have not only a direct and explicit contradiction, but one which is most material.

Article 46 says: Under such regulations as may be prescribed by the President every record of trial by general court martial or military commission received by a reviewing or confirming authority shall be referred by him, before he acts thereon, to his staff judge advocate or to the Judge Advocate General.

No sentence of a court martial shall be carried into execution until the same shall have been approved by the officer appointing the court or by the officer commanding for the time being.

There is an explicit direction to refer it to the Judge Advocate General or to a staff judge advocate before the matter is determined by the reviewing authority.

Article 50-1/2 in the second paragraph says: Before any record of trial in which there has been adjudged a sentence requiring approval or confirmation by the President under the provisions of Article 46, Article 48, or Article 5I is submitted to the President, such record shall be examined by the board of review.

Then it sets out and prescribes specifically what the board of review shall do, and that includes a review of the legal sufficiency of the matter; in other words, it is a method of appeal.

That, we say, is in direct violation of Article 46 and in direct violation of Article 50-½, which refers to Article 46.

Not only is that true, but the President has designated in his Order as the prosecuting officer the very person who under Articles 46 and 50-½ would have to review it, thereby making, as a practical matter, compliance impossible if he should in his discretion refer it to a reviewing authority.

If he did so, it would not cure the defect, because it deprives us of a right of appeal or a right of review, and this Order expressly deprives us of it.

MR. JUSTICE FRANKFURTER: Article 48 refers to Article 46.

Presumably Article 46 calls for a confirmation not by the President at all, but deals with a court martial.

Article 48 says: In addition to the approval required by Article 46, confirmation by the President is required in the following cases before the sentence of a court martial is carried into execution.

So, that means that Article 46 excludes or deals only with situations where the President does not come into play at all.

Am I right or wrong about that?

COLONEL ROYALL: I think you are wrong; but let me see, first, if I understand correctly what you say.

Article 48 provides for an additional review; it does not dispense with the necessity of Article 46.

MR. JUSTICE FRANKFURTER: No, my point is that in addition to the approval required by Article 46, confirmation by the President is implied: therefore, Article 46 does exclude confirmations by the President.

COLONEL ROYALL: I do not think so, sir.

MR. JUSTICE FRANKFURTER: May I suggest that you read it again?

COLONEL ROYALL: Article 46 provides for confirmation in every case, as we construe it.

MR. JUSTICE FRANKFURTER: Yes, but by whom?

It provides for a confirmation when the President shall authorize appropriate regulations whereby a court martial is to be “received by a reviewing or confirming authority” and “shall be referred by him. ”

What is the “him”?

COLONEL ROYALL: By the reviewing or confirming authority.

MR. JUSTICE FRANKFURTER: Therefore the President is out so far as Article 46 is concerned?

COLONEL ROYALL: No.

MR. JUSTICE FRANKFURTER: The President may make regulations providing for review by himself?

That does not seem to me to be sensible.

Then I go back to Article 48: “In addition to the approval required by Article 46, confirmation by the President is required.

That would mean that if the President is to confirm by Article 46, he is also required to confirm by Article 48, in addition

COLONEL ROYALL: I think this is true: I think Article 46 requires confirmation in all cases.

MR. JUSTICE FRANKFURTER: Must every court martial go to the President of the United States?

COLONEL ROYALL: No, only those under Article 48.

MR. JUSTICE FRANKFURTER: All right.

Then, Article 46 deals with those that do not go.

COLONEL ROYALL: I do not think so.

I think that Article 46 deals with all, and Article 48 says which of them shall require approval by the President.

MR. JUSTICE FRANKFURTER: But if they already require approval by Article 46, why do you again require approval by Article 48?

COLONEL ROYALL: It is merely making specific which ones he has to approve.

If Article 48 applies, and that refers to Article 46 also, that does not dispense with the necessity of sending it to a reviewing authority.

MR. JUSTICE FRANKFURTER: Does the scheme of the legislation on make it such that we are here dealing merely with courts martial where you have intermediate tribunals?

COLONEL ROYALL: That also refers to Article 50-½.

I think that is correct.

I have it on better authority than I am-from Colonel Dowell.

Whichever it is, it has to comply with Article 50-½, and Article 50-½ requires a method of review, and the President's Order dispenses with the necessity of that method of review.

MR. JUSTICE JACKSON: If you had a review, and the reviewing authority set aside the finding or the sentence, could the President reinstate it?

COLONEL ROYALL: I do not think so.

MR. JUSTICE JACKSON: You think that he would be bound by it?

COLONEL ROYALL: Yes, though I am not certain about it.

I now understand that he could reinstate it.

MR. JUSTICE JACKSON: If he could reinstate it, then the reviewing authority is merely advisory to him?

COLONEL ROYALL: Article 50-½, provides for two types of review.

One is review of the legal questions involved.

We are deprived of that entirely.

MR. JUSTICE FRANKFURTER: In Article 48 do you possibly come under subdivision d, the requirement for review and confirmation by the President, which you read?

It could not be anything else except d.

COLONEL ROYALL: It does not seem so.

MR. JUSTICE FRANKFURTER: Suppose you read subdivision d.

COLONEL ROYALL: Yes, we come under it.

MR. JUSTICE FRANKFURTER: Why?

COLONEL ROYALL: Because it says: Any sentence of death, except in the cases of persons convicted in time of war of murder, rape, mutiny, desertion, or as spies.

MR. JUSTICE FRANKFURTER: “In time of war”?

COLONEL ROYALL:

MR. JUSTICE FRANKFURTER: Read the rest of it.

COLONEL ROYALL: “-upon confirmation by the commanding general of the army in the field or by the commanding general of the territorial department or division. ”

MR. JUSTICE FRANKFURTER: Do you not see that this case could not possibly get that kind of confirmation and could not possibly come under that?

COLONEL ROYALL: Well, it could, yes.

If it is in a military zone, it could, and that is a prerequisite.

MR. JUSTICE FRANKFURTER: Who is the commanding General of the Army in the field where this took place?

COLONEL ROYALL: I do not know the names of the generals.

I have not got that far along.

There is, of course, a general who commands this area, but I do not know who he is.

MR. JUSTICE FRANKFURTER: As I say, study may shed light on it, but I am just raising the question whether the whole matter of confirming and reviewing does not relate to offenders, offenses and circumstances other than those in this case.

COLONEL ROYALL: If Article 48 does not apply to this case, then I say that it would be put back under Article 46.

MR. JUSTICE REED: If you are under Article 46, and the case is immediately sent to the President, why cannot the President send it to the reviewing officer?

COLONEL ROYALL: He could do that in his discretion, but this gives us a right of review as a matter of right, and we could not know whether he exercised his discretion until too late to do us any good.

MR. JUSTICE REED: If Article 46 applies, you would assume he would follow it.

It ought to be referred by him before he acts thereon.

COLONEL ROYALL: He says here that: “The record shall be transmitted directly to me”

MR. JUSTICE REED: Yes, and then under Article 46, having been transmitted by him, it

shall be referred by him, before he acts thereon, to his staff judge advocate or to the Judge Advocate General.

You say that he cannot refer it to the Judge Advocate General because the Judge Advocate General is a prosecuting officer.

COLONEL ROYALL: That is right.

MR. CHIEF JUSTICE STONE: In other words, the detention would not be unlawful until every attempt had been made to carry into effect the conviction without resorting to this method of review.

Of course, your writ is addressed to the unlawful detention.

All your other points are out of the case.

Then you say the detention was unlawful until the President ordered the carrying into execution of the sentence without the review prescribed in Article 46.

COLONEL ROYALL: The answer is twofold.

They examine it before it gets to the President.

We think it is of material import to deprive a man of his right of appeal.

This deprives him of his right of appeal.

MR. JUSTICE REED: He is not deprived of his right of appeal if this is a void statute until someone who is asked to hear the appeal fails to do it.

He cannot do it at this stage of the proceedings on any theory because we have not any conviction.

COLONEL ROYALL: No, but the Order has already been issued dispensing with the right of review.

MR. JUSTICE REED: But you say that that is voidable.

COLONEL ROYALL: That is right.

If the Order is void, then the whole detention is unlawful.

MR. JUSTICE REED: Then it has accomplished nothing in the state in which it stands.

COLONEL ROYALL: The Order would not be void in part; it would be void entirely, it seems to me.

MR. JUSTICE REED: Do you mean the Order for the trial?

COLONEL ROYALL: The Order of the President.

MR. JUSTICE REED: The Order directing trial?

COLONEL ROYALL: Yes, it would be void.

MR. JUSTICE REED: Because he prescribes an unlawful means of appeal?

COLONEL ROYALL: That is right.

MR. JUSTICE REED: If that is void in his Order, why would it destroy the rest of the Order directing trial by a commission subject to the applicable rules of law?

COLONEL ROYALL: Well, sir, because I do not think that that is capable of segregation; that is an inherent part of the whole procedure.

I do not think you could take a part of this Order and change it unless the other part remained in effect, unless they are clearly separable.

That, of course, is a matter that arises frequently in the case of statutes.

I believe that that is such an integral part of this Order that, if we are correct about it, the Order itself is void-not merely the matter of review, but the entire Order.

In addition to that, we make the point, which I won't argue at any length, because it is covered in the brief, with reference to the rules of evidence prescribed by the President and proof which would convince a reasonable man and which the President of the Commission thinks would convince a reasonable man.

We have discussed that, and I won't go into that any further.

Then we have the Commission itself delegated to make rules, when the statute gives that power to the President-Article 38.

Of course, we understand that any court has an inherent right to make rules in the absence of a specific statute to the contrary, and it is conceivable that a military commission might have that authority unless a statute said it did not.

This statute says the President shall prescribe the rules, and we contend that he had no right to delegate something that was expressly committed to him.

Not only did he delegate it, but he delegated it to the Commission to make rules as the action requires; not rules in advance of the hearing-the record shows that they were not made in advance of the hearing-but rules made during the hearing.

That could change the requirement from two strikes to three strikes after we got at the bat.

MR. CHIEF JUSTICE STONE: Does it appear what those changes were?

COLONEL ROYALL: Yes, sir.

I say “changes.

Rules were made.

MR. CHIEF JUSTICE STONE: I mean change of procedure.

COLONEL ROYALL: Change of procedure from what would be the ordinary procedure.

One of them arose early in the hearing, when we asked for the right of peremptory challenge of one member of the Commission, which is prescribed by Article 18, and that was denied us.

The other is a matter which differs very materially from the common law rule of evidence by admitting confessions of one of these defendants, not alone on the charge of conspiracy but on all the substantive charges, confessions made in the absence of the other defendants and after they were in apprehension or apprehended.

That was a very material factor in the proof of this case, as the record will show.

MR. CHIEF JUSTICE STONE: Was there a rule governing the introduction of confessions before this modification, as you say?

COLONEL ROYALL: There was no rule at all made until that situation arose during the trial.

MR. JUSTICE ROBERTS: That was a ruling rather than a rule, was it not?

It was not a rule.

COLONEL ROYALL: Probably not.

MR. JUSTICE ROBERTS: It was a ruling on evidence.

COLONEL ROYALL: It was probably a rule on evidence.

However, of course, the mailer of the challenge was in every respect a rule.

MR. JUSTICE JACKSON: Was your objection to the confession upon the ground that it was not admissible as against the other parties or on some ground that the confession was not voluntary?

COLONEL ROYALL: We did object to one or two on the ground that it was not voluntary, but the objection I am speaking of is the objection on the ground that it was not admissible as against the other parties.

MR. JUSTICE JACKSON: You claim it bound only for the party who made it?

COLONEL ROYALL: That is right, sir, except possibly on the question of conspiracy; and that was the essential part of the proof in this case.

Now those, may it please the Court, are our contentions.

I did not deal with some of them exactly in the order that I had planned, but that is immaterial, of course.

We tried in our briefs to cover these various contentions as best we could.

The Milligan case, I am sure, is familiar learning to every member of this Court.

It is the basis of our position here.

We think that both the majority and minority opinions fully sustain our view.

The distinction between the Milligan case and ours, if one exists, must be on the ground that Milligan was a citizen or on the ground that the conditions of war have changed since the Milligan case.

Those are the distinctions that the Attorney General makes, and possibly there are some more.

We think that the Milligan case, which has been law for 75 years, is still law today, and that these petitioners are entitled to trial before a criminal court, just as the court in the Milligan case granted.

I won’t say anything more about that, but I do mention it because I may want to deal with it in reply to the Attorney General.

THE ATTORNEY GENERAL: That seems to be the essential fact on which this case turns and to which all of our arguments will be addressed.

The other essential fact, as is clearly admitted in the stipulation, which itself as one of the stipulated facts admits the averments in our answer, is that these petitioners are enemies of the United States who have invaded this country, and that they are now asking this Court for the rights guaranteed by the Fifth and other Amendments to the Constitution to protect them in the trial by a military court from warlike acts calculated to destroy the country under whose Constitution they are now claiming these rights.

We will show first that alien enemies-and Mr. Justice Reed asked the status of these persons-have no rights to sue or to enter the courts of the United States under these circumstances, both because of the President’s proclamation and because of the statutes governing the case, and also because of the very ancient and accepted common law rule that such enemies have no rights in the courts of the sovereign with which they are enemies.

Mr. Justice Reed asked Colonel Royall with respect to the status.

The essential part of the status of these petitioners is not whether or not they are citizens.

It is admitted by Colonel Royall that six of them are not citizens; and we contend that the acts of Haupt, the seventh, show that he too has forfeited his citizenship.

However, that is not the essential factor of the status.

The essential factor of the status is that all of these persons are enemies of the United States.

So in judging their rights to come into court, we meet the case on the threshold to determine whether or not under this proclamation and under the law they have any rights to file this petition.

In judging that we should consider not their citizenship, which seems to be irrelevant, but whether they are enemies of the United States, caught in the act of invading the United States, and now requesting the courts of the United States to help them.

Under that status I think it is very clear that they have no rights.

Before going into a discussion of the common law rights of enemies, it seems to me important to remember the nature of the writ of habeas corpus itself as it is defined in Haisbury’s Law.

The writ is a prerogative process for securing the liberty of the subject by affording an effective means of immediate relief.

Again, Haisbury points out that it will not be granted after conviction by a duly constituted court martial, the proceedings of which have in due course been confirmed by competent authority.

Now, it is true, as is mentioned by Blackstone in the early days, that the common law principle that enemies have no rights to the courts has under certain circumstances been relaxed.

We have recognized that relaxation in America.

Under certain circumstances, in other words, where, after the declaration of war, it is found that an alien has lived here many years as a matter of privilege, the court may grant him, under certain circumstances, access to the courts; but it seems pretty clear that that is a matter for the discretion of the sovereign and does not go to any fundamental right of the alien.

In other words, the right of the alien to a habeas corpus in ordinary times of peace, such, for instance, as his right to test deportation proceedings, is clearly distinguishable and distinguished from any right that he may have in time of war, for war wipes out the rights of the alien in that regard, although, under the discretion of the sovereign, he may, for convenience and for the purpose of internal organization, be granted a right to use the courts for certain limited purposes.

MR. CHIEF JUSTICE STONE: He would have his right to defend himself?

That is recognized even in a court martial.

THE ATTORNEY GENERAL: His right to defend himself would depend on the statute or the common law.

MR. CHIEF JUSTICE STONE: I suppose if he were indicted in the civil courts he would be allowed a defense.

THE ATTORNEY GENERAL: I think it is perfectly clear that a statute could be passed-

MR. CHIEF JUSTICE STONE: I mean under the statute as it stands today is there any question that an alien enemy, if he is accused of a crime, may defend himself?

THE ATTORNEY GENERAL: No.

MR. CHIEF JUSTICE STONE: Or in a civil suit may defend the suit?

THE ATTORNEY GENERAL: No, but I think a statute could be passed under which other jurisdiction could be taken for the trial of any alien.

MR. CHIEF JUSTICE STONE: No such statute has been passed.

THE ATTORNEY GENERAL: No such statute has been passed.

MR. CHIEF JUSTICE STONE: What I am coming to is this: Is the writ of habeas corpus anything more than a mode of defense, and is one who seeks a writ of habeas corpus testing the validity of his trial, even though an alien enemy, in the same status as an alien enemy who comes into court and seeks to recover a judgment in a civil suit?

I believe there is a case pending in which the Department of Justice contends he may do that.

THE ATTORNEY GENERAL: I think that makes a very good distinction.

In other words, with reference to a case where he comes in to plead in court on a commercial suit, that would depend on the statute that has been passed after the declaration of war or some executive act of the President, or both.

In a writ of habeas corpus it is perfectly clear that the alien enemy is not entitled to the use of the writ except to determine the basic jurisdictional fact of whether he is an alien enemy.

When I say that that seems to me perfectly clear, I am speaking of all the apprehensions under the President’s proclamation in this war and in the other war, directing the Attorney General to issue warrants apprehending dangerous alien enemies.

If it were not for the war and the effect of the war on the alien’s right to a petition, he would clearly be entitled to have the question of whether or not he was dangerous determined and, if there was no evidence that he was a dangerous alien enemy, to be released.

Our courts and the English courts have consistently held-

In one case the question was raised in a habeas and in another case on a motion for particulars.

It seems to me, therefore, that that is a holding that the right of the petitioner by habeas corpus to raise questions of fact which he normally could raise in times of peace will not be permitted to him in times of war.

MR. JUSTICE FRANKFURTER: But the argument, as I apprehend it, is that on the face of these papers, these petitioners are outside the category, excluding them from the right to resort to the courts.

As I understand it, that is the argument that Colonel Royall makes.

Therefore, it is a little different from the English common law, where the Home Secretary said, “I have reasonable cause to believe that these are dangerous persons,” and the House of Lords said they would not go behind that.

If the Home Secretary had said, “I detain this person, although I think he is not a dangerous person,” on the face of that return the Home Secretary, I take it, would be out side the statute.

I am not suggesting that that is this case.

That is the argument of Colonel Royall, if I understood it; is it not?

THE ATTORNEY GENERAL: Yes, but I think in order to determine what rights these petitioners have, what must be considered is not only the statute and the proclamation, but the general common law rights which apply to enemies in time of war.

All I am pointing out is that when war is declared the right of enemies to relief in court is largely dependent on the discretion or will of the sovereign.

To put it in a different way, it was suggested here that the proclamation, although not in so many words declaring martial law, exercises the same power that the President has in declaring martial law, on the ground that, to a lesser or greater extent, the President has blocked off those circumstances under which invaders of the country-

You can say positively that the President has said that they shall be tried by military tribunal, and negatively it follows that they shall not be tried by a civil court.

He has said both.

In the commission ordering the trial, he has said that they shall be tried by a military tribunal.

At the same time he has blocked off trial in the courts.

Now, the question is whether or not the President can do that under the proclamation and under the statutes and under the general principle that in cases of war the rights of an enemy depend on the grace of the sovereign.

MR. JUSTICE FRANKFURTER: Mr. Attorney General, may I ask whether, assuming there had been no general proclamation, but merely the order constituting the commission, you would not be here making substantially the same argument?

THE ATTORNEY GENERAL: Yes.

I think what the proclamation added to the law is this: In the first place, it expressed a policy of the Executive Branch of the Government.

Under President Wilson’s proclamation, and today under the President’s proclamation, confusion exists in the minds of the court, particularly now, as to whether or not aliens have any right in courts under those proclamations.

The determination by the courts, as has been said by many courts, will depend very largely on the policy which the President has expressed with reference to his handling of alien enemies.

If it becomes perfectly clear that nothing in the proclamation prevents those enemies long resident in this country from having their normal rights to sue, then the courts will permit them to sue.

If, on the other hand, there is anything found in the proclamation-

I think the proclamation has a second effect, Mr. Justice Frankfurter.

I think that if under the scope of the Milligan case, which, with your permission, I will discuss a little later, there is any necessity for the declaration of that state of facts to occur to which not martial law but military action may be applied, then that the President has found by the proclamation that that state of facts does exist-

MR. CHIEF JUSTICE STONE: These, of course, are two very different questions.

It might well be that, as Commander-

If he has that power and applies it properly to these defendants, we are not then concerned with any question of alien enemies one way or the other.

The question, I take it, has application only if we come to the conclusion that the President had no such power.

Then the question would be whether the courts are open to them because they are alien enemies.

THE ATTORNEY GENERAL: Yes.

MR. CHIEF JUSTICE STONE: We recognize that ordinarily the courts are not open to an alien enemy plaintiff, but we also recognize that courts are open to a man charged with an offense to defend himself.

We recognize that the courts are open to him, even in a civil suit, to defend himself.

Under those circumstances he has that opportunity.

I come back to my question.

If we come to the conclusion that the President has not the power to try them, under circumstances like these, by a military commission, the question then is whether we should treat it more like the defense of an alien found in this country or whether we should treat it like a suit to get affirmative relief.

Of course, its only object is defensive.

I do not know of any authority in this country which disposes of that question.

I am not quite sure that the English cases are, even in principle, controlling.

THE ATTORNEY GENERAL: There are certain cases which I should like to discuss.

I think that is a perfectly fair statement.

Then the question is: Is the right to a writ of habeas corpus in the hands of an enemy more similar on the one hand to defending a crime-

MR. CHIEF JUSTICE STONE: Where by assumption he is entitled to make a defense and to include in that defense the fact, if it is a fact, that he is being tried by a lawless tribunal.

THE ATTORNEY GENERAL: That is the question.

In other words, is this writ of habeas corpus the type of relief which during war the courts give to enemies-

MR. CHIEF JUSTICE STONE: The only effect being, we will assume for the moment, to make a defense, which he is entitled to do, and which we will assume for the moment is a lawful defense and a valid one.

THE ATTORNEY GENERAL: I should care to make it different.

MR. CHIEF JUSTICE STONE: We have to make all those assumptions in order to make it effective.

THE ATTORNEY GENERAL: I should like to make my assumption.

The only effect of it is to remove the alien from a military trial to a civil trial.

MR. CHIEF JUSTICE STONE: Which he is entitled to have if the President cannot try him by military commission, such as in this case.

THE ATTORNEY GENERAL: But again, let me say that the effect of that is not to wipe out the defense of the petitioner.

It really is to relegate him to that type of jurisdiction which in time of war is relegated for enemies of this country.

Under the cases which I have cited in my brief, that seems to me, therefore, to point to the fact that a writ of habeas corpus in the hands of an enemy during war time is denied to him by the courts on the analogy of the commercial cases rather than on the analogy of the criminal cases, which, as the Chief Justice suggested, we permit even to criminals to defend themselves.

In other words, it seems to me that the analogy of the criminal defending himself through the writ, to go through the technique and hit at the heart of the thing, is not, perhaps, with due deference, quite an exact analogy as is the type of tribunal which the enemy claims he is entitled to choose.

It may be that a citizen -

MR. JUSTICE BLACK: If that is true, then, who will determine whether or not he is an enemy?

THE ATTORNEY GENERAL: I assume that the question is directed to who will determine in his petition for a writ of habeas corpus whether he is an enemy?

MR. JUSTICE BLACK: You classify them and say that there is a difference between an enemy and a non-

What I meant was, suppose the man who is charged is a citizen, and you strenuously insist that he is not an enemy of the country; is that fact to be tried by a military commission or by the Court?

THE ATTORNEY GENERAL: I think every court or commission determines its jurisdiction.

Now, the question as to whether or not it has final determination of that jurisdiction-

MR. JUSTICE ROBERTS: You say it cannot be questioned?

THE ATTORNEY GENERAL: That is the question before you.

MR. CHIEF JUSTICE STONE: Under your argument.

THE ATTORNEY GENERAL: Under my argument; and we are dealing with the effect of the proclamation and the law and the statute as to whether or not, at the threshold of his case, he can exercise this right.

All of the argument up to this point has dealt solely with that first step.

When we get beyond that step we then discuss whether or not the Commission is properly constituted, and I will argue that it is properly constituted and that it has jurisdiction over the persons and that it has jurisdiction over the offenses.

I will then show that nothing in the Milligan case affects this decision except a certain dictum in the Milligan case which seemed to me profoundly wrong.

I will then, in-

MR. JUSTICE FRANKFURTER: Do I understand, in view of what you have said, that even though we went to full length with you on the question of alien enemies, we would still have to face the question of the jurisdiction of the Commission as to one of these petitioners because he is a citizen, though I understand that the argument is that the very circumstances in controversy have revoked his citizenship?

THE ATTORNEY GENERAL: Mr. Justice Frankfurter, I am very glad you asked that question, because I think, in my opening, in answer to Mr. Justice Reed’s question as to the status, I said that the status was the status of being an enemy and not the status of being a citizen.

Of course, citizenship has a great deal to do with whether a man is an enemy.

It is perfectly clear that when war breaks out all persons residing in Germany who go on residing there, and after a reasonable time they do not make any effort to leave, whether American citizens or not, become enemies of this country, and that has always been fundamental law.

When war breaks out and the citizens of America, who have a duty in war to come back to this country, fail to do so, they are classed with enemies.

The definition of status of an enemy is not limited, nor can it be defined by the status of citizenship, although citizenship very clearly, and in some cases conclusively, proves the fact that he is an enemy.

For instance, all Germans are enemies, but that does not conclude the class of enemies because there very clearly could be Americans who are also enemies.

MR. JUSTICE JACKSON: When an American becomes an enemy he becomes an enemy by committing treason.

THE ATTORNEY GENERAL: I would not limit it, Mr. Justice Jackson, to treason.

It seems to me to be the practical definition of the word and not a theoretical term.

An enemy is someone who joins the army.

MR. JUSTICE JACKSON: I understood that there was no joining of the army in this case.

THE ATTORNEY GENERAL: There is.

MR. JUSTICE JACKSON: I may be mistaken on the facts.

If he joined the army, that clearly would constitute treason, would it not?

THE ATTORNEY GENERAL: Yes, but what I was going to say IS this: Suppose there was no statute saying that by joining the army you lost your citizenship.

There is such a statute but for the moment eliminate that.

I take it that an American who joins the German Army immediately becomes an enemy.

That constitutes the basis of the crime of treason, but the fact of joining and fighting makes him an enemy.

MR. JUSTICE JACKSON: He loses his citizenship automatically without any decree of the court?

THE ATTORNEY GENERAL: Under the statute he loses his citizenship.

MR. JUSTICE JACKSON: Without any judgment of any court?

THE ATTORNEY GENERAL: Oh, yes.

There is no question about that at all.

MR. JUSTICE FRANKFURTER: But suppose the question of fact of joining the enemy is in dispute in the case of one who, on the face of the papers, was an American citizen.

There is a problem, is there not, that is raised by such a person, and the question of fact is so intermingled with the legal question of deciding it one way or the other?

Is not the position of one who is an American citizen, on the face of documents, in a different category?

THE ATTORNEY GENERAL: I think it is.

MR. JUSTICE FRANKFURTER: I wanted to inquire as to the conceded circumstances in this case.

Is the situation of the so called American citizen in that category, where the facts of allegiance to this country’s enemy are in dispute?

THE ATTORNEY GENERAL: I think the facts clearly show that he lost his citizenship.

MR. JUSTICE FRANKFURTER: The facts are open to us?

THE ATTORNEY GENERAL: The facts are here.

In that connection, perhaps it would be appropriate for me to refer to the appendix to my brief, for the convenience of the Court and perhaps you would like to refer to the pages in following the argument.

Pages 63 and 64 are convenient references to the statutes.

You will find on page 65 a reference to the Annex to The Hague Convention, which, by the way, is found in the statute the adoption of the Convention-

It is interesting to note on page 65 that the Annex to the Convention refers particularly, in paragraph 4, to the language, “To conduct their operations”-

Going through this appendix, on page 66 we have listed those Articles of War which we think appropriate.

On page 69 we have quoted a section from the Trading With the Enemy Act, and on page 70 the Nationality Act, which has particular reference, Mr. Justice Frankfurter, to the petitioner Haupt.

Then, in Appendix II, we have noted some of the history of military trials of belligerents, because, after all, we have to go back into the history of military trials in order to judge as far as possible what the law of war is.

That covers the Revolutionary War-

MR. CHIEF JUSTICE STONE: I suppose you mean that there is a Law of War which may apply, even though you find no specific provision in the Articles of War, to authorize this particular prosecution?

THE ATTORNEY GENERAL: That is precisely what I mean, Mr. Chief Justice.

We must look first to the statutes.

We find 81 and 82 are helpful to us there.

That is an Act of Congress making the Articles of War.

Then we look also to the common law of war.

Now, some of that common law has been codified and expressed in The Hague Convention, but much of it is common law, which certainly existed long before the Convention which codified it in the same sense as our codifications of law; and for that common law we must look to the history of military tribunals and military commissions in order to determine the types of military offenses which are cognizant under military law during war.

This part of the Appendix touches very briefly-

MR. CHIEF JUSTICE STONE: I want to get clearly in mind what you are arguing.

I understand from what you have said that if we should come to the conclusion that these men are not spies, even under Article 82, that does not close the case as far as you are concerned?

THE ATTORNEY GENERAL: Not at all.

MR. CHIEF JUSTICE STONE: You are saying that there is power to proceed against and punish in time of war those who are enemies of the United States, according to some rule or other.

I suppose you would call it the Law of War?

THE ATTORNEY GENERAL: Yes.

MR. CHIEF JUSTICE STONE: And the President may institute that prosecution without authority from Congress?

THE ATTORNEY GENERAL: Yes.

MR. CHIEF JUSTICE STONE: Specific authority?

THE ATTORNEY GENERAL: Yes; and, Mr. Chief Justice, in this case I say he has that specific authority.

In one of the questions of Mr. Justice Frankfurter’s he raised a possible thought in my mind.

The declaration and the conduct of war are obviously placed by the Constitution in the hands of Congress and of the President.

There can be no question about that.

Now, there might conceivably be a conflict between the Executive and the Legislative.

There might be a conflict, for instance, where the Congress, under its express authority, has passed regulations for the government of spies and where the President, not acting under those regulations, but under his power as Commander-

There a conflict would arise.

However, the strength of our case is that the actions of the President here, we claim, are completely under the specific authority of Congress and that it is a coordinated act of the United States Government.

I do not want to labor this one point too far, but a very interesting example is the Milligan case, to which I will come back.

In the Milligan case you will remember that Congress, by the Act of 1863, provided the method by which certain persons arrested by the Executive, by the military, should be tried.

What the Milligan case really held was that the statute had not been followed in the trial of Milligan, and therefore his petition should be granted.

I am not at all sure that the Government in that case could not have argued with some force that in time of war an act which prevented the President of the United States and the Commander-

Curiously enough, that question was never, so far as I know, raised in the Milligan case.

The Court, although divided on other issues, were completely of the opinion that the statute should be followed.

However, we have no conflict in this case.

In this case the President is acting not only under his constitutional powers as Commander -

Now, continuing with this reference to the Appendix, on page 78-

MR. CHIEF JUSTICE STONE: By “those statutes” you mean the Articles of War?

THE ATTORNEY GENERAL: Yes, but I keep referring to it as statutes.

MR. CHIEF JUSTICE STONE: I asked you in order to find out whether you had some other statute in mind.

THE ATTORNEY GENERAL: Yes.

I say that because it is not always realized that that is a statute.

In the same manner I speak of offenses against the Law of War, because offenses are totally different from crimes.

The reason they are made offenses is that they interfere with carrying on the war.

The essence of a crime is that a man has committed an act considered criminal against the Government of the United States.

The offense here cognizable to the Military Commission is not that any crime has been committed, but that these men were interfering with waging battle, both defensively and offensively.

Therefore, I am careful to use the words “an offense against the Law of War” because then that goes into the hear t of one of the issues here.

In other words, the fact that statutes exist which make it a criminal offense to do the acts done here does not prevent those acts from constituting the basis for an offense against the Law of War, and that is best illustrated in the spying cases.

MR. CHIEF JUSTICE STONE: These are offenses or acts which, under the usages of war, are subject to punishment or penalty and treatment as prisoners of war?

THE ATTORNEY GENERAL: That is correct.

MR. CHIEF JUSTICE STONE: In other words, under the usages of war our men who are fighting and who are captured have a status as prisoners, but no punishment may be imposed upon them, except for disciplinary reasons; but you say these is another statute which, under the usages of war, may summarily deal with them, even to the extent of imposing and inflicting the death sentence, and that is what you mean by “offenses”?

THE ATTORNEY GENERAL: Yes.

Of course, the law of war covers both the military in your own army and soldiers on the other side, and I take it that you were speaking of soldiers on the other side.

MR. CHIEF JUSTICE STONE: For example, take a case that is a little different from the one we have.

Suppose a regiment of men, equipped with uniforms of the United States Army, had been seen in Long Island as parachutists.

Would the law deal with them any differently?

THE ATTORNEY GENERAL: Mr. Chief Justice, I do not know.

Parachutists being a rather modern branch of the army-

MR. CHIEF JUSTICE STONE: Perhaps you overlooked one thing.

They were dressed in the uniform of the United States Army.

THE ATTORNEY GENERAL: Oh, that is perfectly clear.

I am sorry.

I did overlook that.

It seems such a matter of degree that it is no different in this case.

Somewhere in the brief we instance the case of disguised parachutists, as you said, being similar to this very case.

In other words, one of the fundamental things about the Law of War and the severe penalty which is applicable to spies is that one of the most dangerous types of offensive warfare-

MR. CHIEF JUSTICE STONE: Now, they would be spies, if we forget the 82nd Article, and be punishable by death, according to usages of war?

THE ATTORNEY GENERAL: Oh, yes.

I do not think the 82nd Article is exclusive.

Prowlers, for example-

MR. CHIEF JUSTICE STONE: We have no statute of the United States declaring that to be spying, have we?

THE ATTORNEY GENERAL: No, Mr. Chief Justice, but I take it that-

MR. CHIEF JUSTICE STONE: And we have no proclamation by the Executive saying that it is an offense against the Law of War?

THE ATTORNEY GENERAL: Except the proclamation before you.

MR. CHIEF JUSTICE STONE: Of course, the present proclamation would not apply to that situation, so that what we are faced with here is the question of whether an act such as I have described can be proceeded against summarily in any way except by the civil courts.

THE ATTORNEY GENERAL: May I illustrate that more forcibly by another possible consideration?

I take it that with respect to the sabotage here-

MR. CHIEF JUSTICE STONE: Do you think they would fall under the sabotage statutes?

THE ATTORNEY GENERAL: May I illustrate that, because I think it is a very suggestive question, if I can carry it on a little further?

MR. CHIEF JUSTICE STONE: Yes.

THE ATTORNEY GENERAL: There is a sabotage act.

Now, these men did not commit sabotage.

That is clear.

They buried their stuff.

At what point is there even an attempt to commit sabotage?

I do not know.

I do not suppose an attempt to murder could be proved by purchasing a gun and ammunition.

I think the hornbook cases are pretty clear on that.

I do not know, therefore, if these obviously military offensive measures could be punishable in a civil court on the theory that this was an attempt to commit sabotage.

I am simply suggesting that doubt.

I do not mean to put myself on record as giving an opinion.

I think the illustration is a good one, because it shows that an offense against war is a totally different thing from a crime, and that the type of punishment needed in the war-

MR. JUSTICE FRANKFURTER: Would a necessity for secrecy be assigned to the situation?

THE ATTORNEY GENERAL: I think that would be true.

Practically it would enter into it.

MR. JUSTICE FRANKFURTER: In this case documents were impounded as an act of security.

THE ATTORNEY GENERAL: I think that is true.

It certainly would be true in the trial of such a case that it would be necessary to apply secrecy.

MR. JUSTICE FRANKFURTER: So that the nature of the offense and its bearing upon the conduct of war may suggest or may compel the one who has command of the war, in his judgment, to use one mode of disposition rather than the ordinary methods which are adopted in times of peace?

THE ATTORNEY GENERAL: I think that is very true.

MR. JUSTICE BLACK: To carry out the observation of the Chief Justice a little further, it would probably be closer to this case to give this example.

Suppose there had been some landings.

Several months thereafter a citizen was picked up on the streets and it was charged that he belonged to that group.

Where would he be tried?

THE ATTORNEY GENERAL: Well, that is this case, Mr. Justice Black.

That is this very case.

MR. JUSTICE BLACK: The question would be whether this citizen-

That is this case?

THE ATTORNEY GENERAL: Yes, except that I do not admit that he is a citizen; but that is Haupt’s case perfectly.

Haupt landed, left his stuff buried in the sand, got away, and was arrested in the internal part of the country.

MR. JUSTICE BLACK: As far as jurisdiction is concerned, let us assume that there was a denial that Haupt had done that.

In the question of jurisdiction I assume it is a question not of what can be proved.

Assuming that that was denied and that the citizen had lived here, would he still be tried by court martial?

THE ATTORNEY GENERAL: Yes.

MR. JUSTICE BLACK: Suppose that he had not come in under the order, but that there had been some trouble in a plant and a man had been accused of trying to interfere with work in a defense plant, and it was said that in some way he had received instructions from a foreign country.

Under the order would he be tried by a court martial?

THE ATTORNEY GENERAL: It is right on the edge.

When I say it is on the edge, let us take a case where clearly I would admit that he would not be tried by court martial-

MR. JUSTICE FRANKFURTER: But this citizen was a member of what might be called an invading party.

THE ATTORNEY GENERAL: That was not Mr. Justice Black’s case.

MR. JUSTICE FRANKFURTER: That is this case.

THE ATTORNEY GENERAL: Yes.

MR. JUSTICE BLACK: Do you think that is determinative of the jurisdiction?

THE ATTORNEY GENERAL: Citizenship?

MR. JUSTICE BLACK: Of the fact that he came in and how he came in.

I am asking you about jurisdiction.

THE ATTORNEY GENERAL: For the purposes of this case I do, but I think that the territorial jurisdiction under which the President and the Congress can establish military law is today and I will get into the phrase which seemed to be objectionable to Colonel Royall-

MR. JUSTICE BLACK: In other words, as I understand your argument, it is based on the concept of total war, authorizing an order something like that which was issued in Hawaii, where the courts are closed entirely?

THE ATTORNEY GENERAL: Mr. Justice Black.

it seems to me that it is based not only on total war-

The facts existing in 1863 do not today exist, and a bomber may drop a bomb tomorrow on Chicago.

Can it be said that there is no area of warfare, no area of military operations in Chicago under those circumstances?

I think not.

The suppositious question which you asked me with reference to a person working in a plant I think would to a certain extent depend on the nearness of the act toward war.

I think certainly that if production were consciously stopped by enemies of the United States in the interior of the country that would come within the same type of facts that I believe this case to be under, which would justify the application of military law.

On the other hand, take a case a little on the other side.

I do not believe we could try in military tribunals those persons recently indicted in the District of Columbia for acts of sedition.

MR. JUSTICE JACKSON: Why not under the theory of total war?

Where do you draw the line?

THE ATTORNEY GENERAL: That is the question, Mr. Justice Jackson, which always comes up in argument at a certain point and that is where you draw the line.

MR. JUSTICE JACKSON: That is the “question that this sort of thing presents.

THE ATTORNEY GENERAL: It does.

MR. JUSTICE JACKSON: Where is the line?

THE ATTORNEY GENERAL: I do not know where you draw the line, but I know that you draw it where invaders invade the coast of the United States against a patrol which is directed against that, and the orders of the patrol-

There can be no question of drawing it there.

MR. JUSTICE JACKSON: That is your case for a military tribunal?

THE ATTORNEY GENERAL: Yes.

MR. JUSTICE JACKSON: All in that?

THE ATTORNEY GENERAL: Well, not all in that; but it is the essence.

MR. JUSTICE JACKSON: Without that you would not have any.

THE ATTORNEY GENERAL: Where do you draw the line of an illegal strike that hinders production?

I would hardly think that that would come in the same category.

MR. JUSTICE JACKSON: Where would you draw the line?

THE ATTORNEY GENERAL: I could hardly-

MR. JUSTICE JACKSON: Would you say that they would be tried by a military tribunal?

THE ATTORNEY GENERAL: I do not think they could.

MR. JUSTICE BLACK: Suppose the charge was that they were acting under the direction of a foreign country.

It would be tried where, under this proclamation?

THE ATTORNEY GENERAL: That would tip it over.

That could be tried not under this proclamation, but under a proclamation covering those facts.

MR. CHIEF JUSTICE STONE: Suppose it was ordered tried by a military commission as part of the war power of the President.

Do you allow any scope in his judgment or is it reviewable by a court to see whether he exercised his judgment properly?

THE ATTORNEY GENERAL: I discuss that in my brief and I say this: that it seems to me, where the matter is as vital as the life and defense of the Government of the United States and its people, that any court would hesitate to say that the Commander-

MR. CHIEF JUSTICE STONE: I have in mind what was said by the Court in this Sterling case.

They said there that there was no basis on which the proclamation of martial law could rest, but it was intimated that there was considerable scope for the Government to determine whether it was sufficiently dangerous to necessitate it.

THE ATTORNEY GENERAL: Yes.

I would like to remind the Court what the Court has said in that connection.

I am referring to pages 51 and 52, and particularly 52, of my brief.

In Moyer against Peabody, in 212 U.S..

78, where the Court refused to inquire into the necessity for the declaration of martial law by the Governor of Colorado-

When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment.

Public danger warrants the substitution of executive process for judicial process.

MR. CHIEF JUSTICE STONE: The case of Sterling I think limited that language, did it not?

THE ATTORNEY GENERAL: The Sterling case said this.

I think Mr. Chief Justice Hughes wrote that opinion.

It limited it to a certain extent.

These are all matters of degree, Mr. Chief Justice, it seems to me.

The nature of the power also necessarily implies that there is a permitted range of honest judgment.

I think in time of war perhaps that limited range of honest judgment might be broader than in time of peace as to the measures to be taken in meeting force with force, in suppressing violence and restoring order, for without such liberty to make immediate decisions, the power itself would be useless.

Certainly there is a range behind which the Court will not go, and such measures, conceived in good faith in the face of the emergency and directed toward quelling the disorder, fall within the discretion of the Executive.

MR. JUSTICE FRANKFURTER: Do I understand from the very candid answer of Colonel Royall that the circumstances in this case at least in part are these: that an enemy ship of war came into our waters and brought at least some members of the enemy military establishment under direction by the enemy authorities, for the purpose of carrying forward the enemy’s war with this country?

THE ATTORNEY GENERAL: That is correct.

I think it is unnecessary to draw the line.

I will come back to my facts and ask you to decide the case on those facts.

May I very briefly review them?

MR. JUSTICE BLACK: Have we the right to review the facts?

THE ATTORNEY GENERAL: I think you have.

I think the petition contends that you have the right to review certain jurisdictional facts, and I think you have a right to review very few; but I think it is appropriate, with the stipulation having been made, that the record may be treated in the same way as though the witnesses had been called to court and testified for the purposes of this motion.

It is certainly not inappropriate for me to refer to this fact.

I take it that under certain circumstances facts before a military commission could be brought before a habeas corpus proceeding as dealing with a fundamental jurisdictional question I take it that certainly under certain circumstances that could be done and has been done.

With your permission, I am going to very briefly review the facts.

MR. CHIEF JUSTICE STONE: Mr. Biddle, we have sat beyond the usual hours of the Court.

We thought we would continue until half past five.

THE ATTORNEY GENERAL: All the facts are not spelled out in the stipulation, but they are all in the record.

Most of them are in the answer or the stipulation.

On June 12 of this year one submarine landed or came within a few hundred yards of Amagansett Beach, Long Island, and a rubber boat took four persons from that submarine and landed them on that beach.

The rubber boat brought with it boxes of explosives.

I might add here that practically all of this has appeared in the papers, so I am not giving away any very confidential information.

The things were buried and these men got away and, about a week later, were arrested by the FBI and turned over to the military authorities.

On the 17th of June four men-

They then went inland to Chicago and they were later arrested and turned over to the military authorities.

The evidence before the Commission has closed.

There will be no further evidence.

There will be arguments, but as far as the evidence is concerned, it is closed.

The evidence consists mainly in the confessions of all eight of the persons who landed, including these seven petitioners.

MR. CHIEF JUSTICE STONE: That is made a part of the record before us?

THE ATTORNEY GENERAL: That is made a part of the record I should have pointed that out.

The fact that the record is closed is part of the stipulation before this Court.

Each one of these defendants signed very long and detailed confessions, all of which were introduced on the record, offered, and the Commission permitted them to be received in evidence as against all of the other persons on the conspiracy charge and presumably for all charges.

Every defendant-

The case is so completely sustained by the direct evidence of the defendants themselves that any technical question of whether the Commission should or should not have followed the rule as to confessions in the common law, under the proclamation of the President which permitted them far greater latitude with respect to the introduction of evidence, is hardly worth arguing.

That evidence showed that these men had been trained in a sabotage school in May of this year.

They had all been there and they had been trained specifically for the purpose of coming to the United States, all chosen as persons calculated to be competent in sabotage, because they had lived in America for several years; and they were chosen for that very position.

The evidence shows that they were shown certain plans and designs, and that the types of objects which they were instructed to dynamite and to destroy, and the objects themselves, were studied; and then they were taken to various railroads and locks and canals and aluminum plants in order to be trained specifically in the method of best handling their explosives when they came to this country.

The evidence also shows that this school was conducted by a lieutenant of the German Army.

There is no question about that at all.

They all say that.

He was a lieutenant of the German Army and he conducted this school and taught the men how to commit sabotage.

I take it that if there is any evidence, it is sufficient for our purpose.

It is not a question of conflict.

There is evidence that every one of these men was assigned to a unit in the German Army.

The petitioner Burger, for instance, himself is a member of the German Army and so testified.

There is no question about that at all.

As I say, there is evidence that the others were assigned to the Army.

MR. JUSTICE BYRNES: I dislike to interrupt you, but may I ask as to the status of Haupt?

As to these other petitioners who entered that school, did they testify that when entering the school they pledged allegiance to the German Government?

THE ATTORNEY GENERAL: No, they did not.

The petitioner Burger testified that he pledged allegiance to the government.

There is no evidence, I believe, in Haupt’s testimony, or in the evidence with respect to Haupt, that he took any specific pledge.

There is evidence to this effect, Mr. Justice Byrnes that Haupt and every one of these defendants signed a contract under the provisions of which Haupt’s family would be paid a certain amount of money during his activities in this sabotage work.

But it is not clear, nor is there really any evidence specifically as to the other party to the contract.

But I do not believe it is questioned that they were employed by the German Government and paid by the German Government.

In other words, it seems to me a fair inference from the other evidence that these men were employed and paid by the German Government.

Have I answered your question?

MR. JUSTICE BYRNES: What I wanted to know was whether, when they entered the school they were required to pledge allegiance to the government.

THE ATTORNEY GENERAL: They took an oath of secrecy but I do not think there was any pledge in the sense that it would come under the statutes.

MR. CHIEF JUSTICE STONE: What do you mean by being as signed?

THE ATTORNEY GENERAL: There is evidence that the defendant Burger, who was the last to take the stand and who took the stand immediately before the case was closed, testified that the German lieutenant in charge of the school stated to him, Burger, that every one of the other defendants, including Haupt, had been assigned to units of the German Army.

That evidence was objected to very strongly by Colonel Royall on the ground that it was a declaration which was not effective against the other defendants except Burger.

But we claim, of course, that under the President’s proclamation with respect to the admission of evidence, which we believe to be valid, the evidence was properly admitted, just as the evidence of the confessions was properly admitted.

I am referring to the President’s commission or precept setting up the Commission, just in passing, in which the President directed that such evidence shall be admitted as would in the opinion of the President of the Commission have probative value to reasonable men.

The Commission admitted all that evidence against all the defendants, and I take it that the Commission assumed that it had probative value to the members of the Commission.

The evidence is this: Questions by the Attorney General -

Q: Pete-

That is Burger, the witness, and one of the petitioners.

He was the one who was in the army, you will remember-

-

That was the submarine base in France from which the submarines left-

-

A: I do not get that question.

Then the question was read by the reporter, and the witness answered -

A: Not in Lorient.

At the school, I was told; yes, sir.

Q: At the school you were told that every member of both groups had been assigned a number in the German Army?

A: I do not know about numbers, but they were assigned to the German Army.

Q: They were all assigned to the German Army before coming over?

A: Yes.

Q: All eight of them?

A: I imagine so; yes, sir.

Q: Who told you that?

A: Kappe.

The other evidence showed that Kappe was the lieutenant who was in charge of the school.

In that connection there is a discussion of the citizenship of both Burger and Haupt in Appendix 4 of our brief, starting on page 84.

Burger was included in that discussion because I think at the time the brief was written counsel for the petitioner Burger had not agreed that he was not a citizen, having joined the German Army.

I should like to come back for a few minutes to the question of their rights to sue, which I had touched on in the opening part of the argument, the rights of the petitioners to a writ of habeas corpus.

There is evidence that they were given methods of communicating among themselves in the United States, and there is evidence that they were given methods of communicating abroad.

It is true that they stated that they received instructions that they were not to make any reports; but nevertheless, that is simply a piece of evidence and would not exclude the not un-

That evidence would not exclude, as I say, the not unfair assumption that they were to use the technique of communication for other purposes.

It seems to me that is a fair assumption.

MR. JUSTICE JACKSON: Do you take the position that they were part of the combat force?

THE ATTORNEY GENERAL: They were persons waging war, prowling around the fortifications.

MR. JUSTICE JACKSON: If they were part of the combat force and were captured or surrendered, to what extent are they prisoners of war?

THE ATTORNEY GENERAL: We do not for a moment base our case on the fact that they are spies.

We contend that persons coming in behind the lines, concealed under those circumstances for the purpose of sabotage, clearly come under the Law of War, and that they are punishable by the most severe penalty.

It is not based on any Article, but based on the Law of War.

MR. JUSTICE JACKSON: Suppose they were met by members of the patrol and they shot members of the patrol?

THE ATTORNEY GENERAL: You mean, if they were dressed in the uniforms of their army?

MR. JUSTICE JACKSON: Yes.

THE ATTORNEY GENERAL: But they were not.

In other words, that type of going behind the enemy line dressed not as a soldier does not only go to spying but goes to similar offenses which are technically described as spying.

MR. JUSTICE JACKSON: Do you have a case on that?

THE ATTORNEY GENERAL: I will refer you, Mr. Justice Jackson, to page 31 of my brief, which covers the Rules of Land Warfare.

The Rules of Land Warfare are simply a summary of the military code made for the benefit of the Army.

It is a summary of the statutory and common law of war to which I have referred.

It deals with the Rules of Land Warfare 348.

Hostilities committed by individuals not of armed forces.

I am referring to the codification.

Persons who take up arms-

MR. CHIEF JUSTICE STONE: Are you reading from your brief?

THE ATTORNEY GENERAL: Yes, Your Honor, from page 31.

Persons who take up arms and commit hostilities without having complied with the conditions prescribed by the laws of war for recognition as belligerents are, when captured by the injured party, liable to punishment as war criminals.

That is exactly what these persons did, and it has nothing to do with spying.

351.

Men and bodies of men, who, without being lawful belligerents as defined in Paragraph 9, nevertheless commit hostile acts of any kind, are not entitled to the privileges of combatants.

If captured, they have no right to be treated as prisoners of war.

They may not however, after being captured, be summari1y put to death or otherwise punished, but may be brought to trial before a military commission or other tribunal, which may sentence them to death or such other punishment as it may consider proper.

Armed prowlers are not the same as spies; they are in the same general classification.

Armed prowlers, by whatever names they may be called, or persons of the enemy territory who steal within the lines of the hostile army for the purpose of robbing, killing, or of destroying bridges, roads, or canals, or of robbing, or destroying the mail, or of cutting the telegraph wires, are not entitled to be treated as prisoners of war.

These persons stole over our lines.

MR. JUSTICE ROBERTS: Were they armed?

THE ATTORNEY GENERAL: They were not armed, no.

I take it, under the Law of War, whether they were armed or unarmed, if they go behind the lines and try to dynamite behind the lines, they would be considered prowlers.

I suppose in some sense these men were armed.

They were not armed with side arms, but they were armed with explosives.

MR. CHIEF JUSTICE STONE: This is merely a departmental promulgation having the force of administrative rules as to what the Law of War is?

THE ATTORNEY GENERAL: I take it they are an attempt of the Army to codify the Law of War.

MR. CHIEF JUSTICE STONE: It is a departmental matter, not an Act of Congress?

THE ATTORNEY GENERAL: No; not an Act of Congress.

MR. CHIEF JUSTICE STONE: I suppose it would be an administrative ruling such as certain departments of the Government promulgate?

MR. JUSTICE ROBERTS: It is like a text book, is it not?

THE ATTORNEY GENERAL: It is more like that; yes.

It is used as an administrative text book for the guidance of persons engaged in administrative work.

I do not know to what extent they are bound by these requirements.

In our discussion of these offenses against the Law of War, I think it appropriate at this time to call attention to Article 15 on page 206 of the Manual for Courts Martial.

This is a statute, of course.

This, by the way, Mr. Chief Justice, is referred to on page 32 of our brief; but the Article is not quoted there, so I am going to refer to the Article itself.

It is found on page 206 of the Manualfor Courts Martial, and is headed, you will see, “Jurisdiction Not Exclusive.

The provisions of these Articles conferring jurisdiction upon courts martial shall not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect to offenders or offenses that by statute or by the Law of War be triable by such military commissions, provost courts, or other military tribunals.

I think it is a rather interesting fact that it does not end up with courts martial, nor does it even mention them.

I think the reason for that is that military commissions were always those military bodies which were chosen to try special offenses and that, roughly speaking, courts martial were to try offenses committed by members of the Army and Navy-

I think that when I begin to analyze the Articles of War, about which Colonel Royall has argued with respect to commissions, that thought that commissions are very special bodies and have always been treated as special bodies will be carried out through the expressions in the Articles of War which deal with court martial in general terms and which, in our opinion, exclude commissions from the general provision with respect to court martial proceedings applicable to court martial.

MR. JUSTICE BLACK: Is there any source to which we can go to find a recognition of that?

MR. JUSTICE ROBERTS: Ex Parte Vallandigham refers to it briefly.

THE ATTORNEY GENERAL: I think I can give you some source material; there is some in the brief.

I am sure we can find it if we have more time.

There are some historic al references in the brief.

And that case, by the way, Mr. Justice Roberts, in specific language recognizes the Law of War.

The Court in that case uses that very phrase, so that the Supreme Court, as far back as that, recognized the Law of War.

MR. JUSTICE REED: Is there a distinction between the Law of War and martial law?

THE ATTORNEY GENERAL: I am very glad you asked me that, because I think one of the basic misconceptions of the Milligan case is the confusion between martial law and the Law of War.

I take it that for the purposes of this argument this rough division of the three types of martial law is sufficient.

Martial law is that law which is entirely created by the commanding officer who, having ousted the civil courts from jurisdiction on account of the pressing needs of the invasion, or whatever it may be, supplants the civil law by martial law.

Martial law, therefore, is a creature of the soldier.

It is executive military law.

I do not mean by that to imply that there cannot be lesser forms of martial law, as has been here suggested before, and as might be shown by the President proclaiming that a certain type of law will apply.

But that, strictly speaking, is not military law.

When we use the term “martial law” correctly, I think we mean a law which supersedes and supplants the ordinary law of the land and the courts.

The Law of War has nothing to do with martial law, because martial law can fill any needs that may be deemed necessary from the circumstances.

The Law of War is the well established law of nations existing for many hundreds of years which is found in the history of military tribunals and military commissions and in the textbooks and is occasionally referred to in the statutes, as we see here, as Mr. Justice Roberts suggested, in the Vallandigham case.

Military law, I assume, is the kind of law which is applied to the military, and usually applied through the means of courts martial, applied in peace as well as in war.

It is the law which affects the soldiers; and I think an understanding of that makes the term in the Milligan case more clearer, as I will have the opportunity of pointing out tomorrow.

MR. CHIEF JUSTICE STONE: How much more time do you wish?

THE ATTORNEY GENERAL: It is a little hard to tell, Mr. Chief Justice.

I think I can finish in an hour tomorrow if I have a chance to end up after Colonel Royall has made his argument.

You have been very generous to us in the matter.

I do not know how long I have taken.

MR. CHIEF JUSTICE STONE: We are not disposed to limit the argument.

THE ATTORNEY GENERAL: You are very gracious, Mr. Chief Justice.

If there are certain points that you feel have been thoroughly covered, I would be inclined not to argue on them at all, but only argue those points where you have some doubt.

MR. CHIEF JUSTICE STONE: I think you better use your own judgment about that.

THE ATTORNEY GENERAL: Do you wish me to continue now?

MR. CHIEF JUSTICE STONE: I think we can go on for another half hour.

THE ATTORNEY GENERAL: Those, then, are the three types of law that should be distinguished.

With the Court’s permission, I will go back very briefly to the original question of the right to sue that the petitioners may have, pointing out that I base my argument on the fact that they are alien enemies, and there is no question of citizenship.

MR. JUSTICE JACKSON: In other words, they are enemies?

THE ATTORNEY GENERAL: Yes, sir.

MR. JUSTICE REED: Are there any decisions which support the position you take as to their incapacity to appear in court and secure a writ of habeas corpus because they are enemies?

THE ATTORNEY GENERAL: The American cases to this extent support it.

They support it on proceedings brought by enemies who have been apprehended under the proclamation.

The courts conceive that that is a proper way of questioning the sentence of whether or not they are enemies; but the President, under his executive power, under the Trading With the Enemy Ad, and his Proclamation, acting through his Attorney General, apprehends and sends to internment for the duration of the war any alien, any enemy who, in the opinion of the President, is dangerous; and that discretion cannot be reviewed.

That, of course, is not a direct authority for saying that the writ of habeas corpus cannot be used under those circumstances.

It seems to me to illustrate the authority.

MR. JUSTICE FRANKFURTER: You stated a moment ago that you rested your case on the ground that these men are enemies.

Would it be proper to say that they are enemies who are engaged in combat or in preparation for combat?

THE ATTORNEY GENERAL: I thought I had suggested that.

I will agree that they are fighting enemies.

MR. JUSTICE FRANKFURTER: A moment ago you said that you rested your case on the fact that they are enemies.

THE ATTORNEY GENERAL: Yes.

I think that is a very good point; and also that they had landed in the United States and had landed only for the purpose of fighting for Germany and had gone to Germany and had resided there for a substantial period of time.

MR. JUSTICE FRANKFURTER: They were active instruments of warfare?

THE ATTORNEY GENERAL: Yes, sir.

I do not think we have admitted any conclusions from facts, but we have admitted certain facts.

MR. JUSTICE JACKSON: It has been said that they had no intention of fighting, but that they were trying to get to this country and this was their only means of getting here.

How far have we got to draw conclusions?

THE ATTORNEY GENERAL: I think if there is any evidence that sustains our conclusion that they are enemies, that is all you have to find.

You are not going to balance the evidence and decide the case on its merits.

They said they did not want to do any harm, that they took this means of getting out of Germany.

So there is conflict on that specifically.

There is no conflict on the fact that they were trained for this purpose, and that so far as the purpose in the mind of the German Reich was concerned, the purpose was to send them over here and put them on the shore from a rubber boat from the submarine.

There is no question about that.

The only conflict is the intent in their minds.

MR. JUSTICE FRANKFURTER: If they were before a common law jury, the jury might either believe their story or disbelieve it and, disbelieving it, find they were human instruments of war?

THE ATTORNEY GENERAL: I do not think any jury would find anything else.

MR. JUSTICE FRANKFURTER: Is that a fair statement?

THE ATTORNEY GENERAL: Yes; it is a fair statement.

In other words, so far as the evidence goes, all you are interested in is to see whether or not there is enough evidence to sustain the jurisdiction of the Commission.

I point out on one side that the charges sustain themselves, and on the other, even if, under the circumstances, the Court will go into the evidence and, having gone into it, you see that there is sufficient evidence to sustain them, it seems to me that, having stipulated that, reference may be made to the evidence in the same way as if it had been offered to you-

MR. JUSTICE ROBERTS: In the Wessels case the district court entertained a habeas corpus on the merits, did it not?

That case involved a German officer who had been tried by a military commission.

THE ATTORNEY GENERAL: I would have to look at that.

That was Judge Manton’s case in which he sustained the military tribunal?

MR. JUSTICE ROBERTS: Yes.

He examined the merits on the return.

MR. JUSTICE FRANKFURTER: What is meant by saying he examined the merits on the return?

MR. JUSTICE ROBERTS: The return set forth the facts.

MR. JUSTICE FRANKFURTER: The writ was dismissed in that case?

THE ATTORNEY GENERAL: Yes, sir.

I do not know whether Judge Manton did more than this Court is doing.

MR. JUSTICE ROBERTS: He said the courts were closed.

THE ATTORNEY GENERAL: He did not have a proclamation, Mr. Justice Roberts, and that would make some difference.

Probably he would have looked at the doorstep if he had a proclamation.

MR. JUSTICE ROBERTS: He dismissed the writ?

THE ATTORNEY GENERAL: Yes, sir.

In connection with what I have called the threshold question, the question of whether the petitioners can ever get by the proclamation and the common law that does not permit them to sue as aliens, the Act of 1798, which is still law, is, I think, particularly important.

It is detailed on page 20 of our brief.

That Act provides that: Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the Territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of 14 years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

There you see the President has tremendous power to start with over these persons and has exercised it in the Proclamation.

Then the Act goes on to say: The President is authorized, in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the par t of the United States-

That is a very interesting phrase and, so far as I know, it has never been construed.

What does Congress mean when it says that the President is authorized “to direct the conduct to be observed on the part of the United States”?

It seems to me that that might be broad enough to argue that Congress had said that where war exists the President may even go so far as saying that the United States shall try these persons not in the civil courts, but in a military tribunal.

Otherwise the language can have very little meaning.

Then, continuing: on the part of the United States, toward the aliens who become so liable;-

In other words, it gives the President tremendous power with respect to the methods of handling these aliens, and he is not limited to courts of any particular form.

Then it goes on apparently with even a broader sweep: -

The very question which is before you, the restraint-

-

That statute, of course, tremendously strengthened the sweeping validity of the Proclamation which the President might, without the statute, as Commander-

There is a case which construes that in the Ninth Circuit as recently as 1918, in the last war, the De Lacey case, 249 Fed.

625, in which the Court said: While, as to property rights and life and liberty, all aliens domiciled in the United States, or temporarily therein, are accorded the equal protection of the law, and due process of law, such is not the case as to alien enemies.

has changed the common law rule, or restricted the power of Congress to enact the alien enemy law.

Power to enact such a law may at times be essential to the preservation of the Government, and the right of all nations to exercise it is recognized in international law.

Let us assume that Congress had used the language of the proclamation as a statute.

I can see no reason for suggesting that that, in time of war, would be unconstitutional.

Congress has the power by regulation under the Constitution itself to provide for the method in which enemies may be tried; and I now say that Congress has delegated that power to the President, and the President exercises it and closes the door to these enemies of the country coming into this Court on a habeas corpus proceeding.

COLONEL DOWELL: Which Act are you referring to now?

THE ATTORNEY GENERAL: I am referring to the Act of 1798.

I said at another point in my argument that the war-

There was no conflict on that division, since both the Congress and the President in the Articles of War, in the statutes providing for commissions, and in the Proclamation were acting together.

In the First Article of the Constitution Congress is given power to define and punish piracies and felonies committed on the high seas and offenses against the law of nations.

That is in the Constitution itself.

And it is given power to declare war, grant letters of marque and reprisal and make rules concerning captures on land and water.

This, I take it, is a capture on land.

I do not know what else a capture on land would mean.

So the Constitution gives Congress power to pass statutes governing captures on land in time of war.

We look to the Act of 1798 and we find that Congress has exercised its power by a statute.

We take a further step and we see that the President has buttressed that power given him by the Congress providing that he is authorized in time of war to direct the conduct to be observed on the part of the United States.

He has directed that conduct by issuing this Proclamation.

I do not think the point should be labored, but I might add here that the same Article of the Constitution gives Congress power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers.

The Article dealing with the President is the Second Section of the Second Article, which makes the President the Commander-

At first the prisoners were under the FBI and were handed over to the military only when the commission was signed.

But had they been in the hands of the military, they could very obviously have held them in any way they wanted, not arraigning them or taking any legal steps, had they wished to procure further information.

MR. JUSTICE JACKSON: I do not think you have covered the status of these people under international law, have you?

You have not covered that in your brief.

THE ATTORNEY GENERAL: I think you have noticed the reference to The Hague Convention on page 65 of our brief?

MR. JUSTICE JACKSON: Are both combatants and noncombatants entitled to be treated as prisoners of war?

There is a great body of learning back of The Hague Convention, of course.

THE ATTORNEY GENERAL: I take it that it is perfectly clear that the privileges of prisoners of war are extended only to those who are taken as prisoners in war, and that any privileges given by the Law of War or given by The Hague Convention go only to soldiers, and that they lose those privileges when they take off their uniforms.

MR. JUSTICE REED: The mere absence of uniforms makes a difference?

THE ATTORNEY GENERAL: All the difference in the world; and that runs especially through all the Law of War.

Perhaps the statement as to the absence of a uniform was too narrow.

Of course, it is an identification.

Where a man comes in as a soldier you know him and you can shoot him.

When he sneaks in behind your lines dressed as a civilian you cannot shoot him and therefore there is no reason why you should imprison him as a prisoner of war, and there is every reason that you should shoot him.

The First Article of the Convention states that the rules apply not only to armies but also to the militia and volunteer corps fulfilling the following conditions, reciting them, in accordance with laws and the customs of war.

So I take it that it is sufficient in this Article of the Convention to show that if we are dealing under the law of the Convention we are properly applying the laws, rights, and duties of war to the conduct of these petitioners and their operations.

MR. JUSTICE JACKSON: There is a question as to whether or not the Law of War applies if the uniform is off.

THE ATTORNEY GENERAL: It is perfectly clear that the law applies when the uniform is off.

There is absolutely no question about that.

I think I can point that out.

With your permission, I will defer that for the moment until I come to the argument of whether the Commission had jurisdiction of the defendants, because I shall have to say something about the Law of War and that the Law of War very definitely does apply to prisoners of war who have taken off their uniforms and thereby become spies or prowlers.

I had been dealing with the Act of 1798.

Mr. Justice Marshall in the Brown case said that war gives to the civilian full right to take the person and confiscate the property of the enemy wherever found.

That, of course, does not only lay down the rule, but it shows the length to which courts have gone in giving little or no rights to enemies during a time of war.

Section 7-

That Act provides that: Nothing in the Act shall be deemed to authorize the prosecution of any suit or action at law or in equity in any court within the United States by an enemy or ally of enemy prior to the end of the war, except as provided in Section N hereof.

That relates to trademarks and is not applicable here.

The Act defines “enemy” so as to include an enemy country; and that was the basis of your recent decision in the Colonna case which was decided only a few months ago.

You will remember that in that case the Italian ambassador asked for a writ of prohibition and mandamus, and the Court denied it in a per curiam decision.

You first referred to the Act, as I said a moment ago, as defining a nation to be an alien enemy, subject to the provisions of the Act, and then said that this provision was inserted in the Act in the light of the principle recognized by the Congress and by this Court that war suspends the right of enemy plaintiffs to prosecute actions in our courts.

That is broad language.

I do not want to overemphasize the fact that it is very broad.

That was an application for a prerogative writ not unlike a habeas corpus, which is being asked for here.

But always the rule has been that enemies in time of war cannot apply to the courts.

MR. CHIEF JUSTICE STONE: We will suspend until tomorrow.

MR. CHIEF JUSTICE STONE: Mr. Attorney General, you may proceed.

THE ATTORNEY GENERAL: May it please the Court: I desire to point out one slight correction in my brief.

On page 53 of my brief, in the second paragraph from the end, the figure “8” should come out.

In the sentence beginning, “Under Articles of War 8, 15 and 38,” the “8” should come out; it is an incorrect reference.

In answer to a question by Mr. Justice Roberts with respect to the Wessels case, I find that that case came up from the district court to the Supreme Court and was dismissed by stipulation of the Supreme Court; and the court below, Manton sitting in the district court, considered it solely on the petition and did not go into the evidence, stating that the sole inquiry was the jurisdiction of the court.

I should like to state a few additional facts, still in connection with the Government’s claim that these petitioners have no right, as enemies of this country, to file a petition.

I think it should be remembered that not only were they invaders; they were all born in Germany; they all lived for a certain number of years in the United States; and they all went back, apparently for permanent residence in Germany, sometime before war was declared.

I think the latest arrival in Germany was the petitioner Haupt, who arrived on the day of Pearl Harbor.

I think it also should be remembered-

The purpose of the prisoners, therefore, in landing in their fatigue uniforms-

act of landing, they would have had the advantages of prisoners of war, which they, of course, forfeited the moment they changed into civilian clothes and went behind the lines for the purposes for which they were instructed.

I think another significant fact is that most of these petitioners traveled back to Germany at the expense of the German Government, with money furnished them by the consul; and the petitioner Haupt, the only one who is even alleged to have retained his citizenship, traveled on a German passport.

MR. JUSTICE FRANKFURTER: You say.

Mr. Attorney General, that these petitioners have no right to file a petition of habeas corpus.

I understood you yesterday to agree upon the jurisdiction of this Court, which implies-

-

THE ATTORNEY GENERAL: Yes.

I was speaking of their rights and not of your jurisdiction.

MR. JUSTICE FRANKFURTER: I understand that, but there must be, therefore, access to the Court to ascertain whether they can secure a habeas corpus.

Am I right about that?

In other words, we are here discussing it.

THE ATTORNEY GENERAL: You are here discussing it.

But I do not think they have any rights in this Court.

I am sure, looking at the Proclamation, that the Court has no jurisdiction at all.

Take the case of prisoners of war.

These men are prisoners of war, not in the technical sense, which helps them, but in the sense of being persons captured, belonging to the foreign forces; and therefore, surely, if prisoners of war have no rights for habeas corpus, it seems to me to follow a fortiori that these men have no rights.

I think it is perfectly clear, certainly under the English cases, that prisoners of war have no rights to go in and ask the aid of civil courts when they have been captured by the Army.

MR. JUSTICE FRANKFURTER: Is it your view that, having read the Proclamation referred to, we should at once say that we can not listen to any more talk?

THE ATTORNEY GENERAL: That is my view; but I hope that you will listen to more talk, for this reason: I think that the case of Ex Parle Milligan is very bad law and that its effect not only on the courts but on the Army is harmful.

I hope very definitely that, even should you decide that the Proclamation stands in the way of further action, you may think it advisable to consider whether now you shall not, at least, overrule that portion of the opinion of the majority in Ex Parle Milligan which says that where civil courts are sitting under the circumstances in the Milligan case, there can be no trial by military commission.

MR. JUSTICE FRANKFURTER: Is it not necessary to go beyond the Proclamation in order to ascertain whether the petition and the return bring the matter within the Proclamation?

THE ATTORNEY GENERAL: It seems to me not.

It seems to me that the Proclamation itself is sufficient to bar these persons from any rights in this Court.

MR. JUSTICE ROBERTS: The Proclamation and the Order state the subject matter of the Military Commission’s jurisdiction, do they not?

THE ATTORNEY GENERAL: Yes.

MR. JUSTICE ROBERTS: Would you contend that if on their face the charges and specifications were outside the President’s Proclamation, we could not examine?

THE ATTORNEY GENERAL: I had assumed that Mr. Justice Frankfurter included the charges.

When he says “on the face of the Proclamation,” I think this Court should look at the precept and the Proclamation filed-

MR. JUSTICE FRANKFURTER: Where do we get this from except from the pleadings?

THE ATTORNEY GENERAL: Well, you can look at the pleadings, I suppose.

MR. JUSTICE FRANKFURTER: Then, we do have to entertain the case, if I may use that term, at least to the extent of finding whether it is within the Proclamation?

THE ATTORNEY GENERAL: Yes.

That seems to me to be no more than saying that you have a right to look at the law in a preliminary way to see whether these persons have any rights.

MR. CHIEF JUSTICE STONE: Not only the right to look at the Proclamation to see whether it is within the law-

THE ATTORNEY GENERAL: Of course, the law is not a matter of proof: it is a matter of all your knowledge.

You know what the law is; you do not have to look at it.

Having that knowledge, you can reach the determination.

MR. CHIEF JUSTICE STONE: If we know it, we have wasted a great deal of time.

THE ATTORNEY GENERAL: Mr. Chief Justice, I think that Mr. Justice Frankfurter’s question was directed to a highly technical and exact matter, and it seems to me that it is not unfair to assume that the Court knows the law for that purpose.

I am not assuming that you know the law for any other purpose.

MR. CHIEF JUSTICE STONE: What you are now discussing, I take it, is quite apart from your contention that an alien enemy may not apply for habeas corpus in any court?

THE ATTORNEY GENERAL: Yes; and may I carry that a little further, Mr. Chief Justice, now that you have mentioned it?

You said yesterday that we should not look at the nature of the writ but should see what the actual purpose was-

MR. CHIEF JUSTICE STONE: The purpose of the writ is defensive?

THE ATTORNEY GENERAL: Defensive.

MR. CHIEF JUSTICE STONE: What I was raising is whether, when a man has a right to make a defense, and that includes the court in which he should be tried, he is foreclosed from making that defense by way of habeas corpus because he is an alien enemy.

THE ATTORNEY GENERAL: Yes.

It seems to me, Mr. Chief Justice, that there are two possible distinctions: One is whether an alien should be treated differently in being permitted to come in for a defensive purpose to collect a claim.

As Mr. Justice Jackson has said, aliens are treated differently for many different purposes in time of war.

MR. CHIEF JUSTICE STONE: He may appear as a plaintiff in order to get an affirmative judgment.

He may defend against judgment being taken against him.

These men are engaged in defense of their liberty, and they are using this process as an instrument of defense.

THE ATTORNEY GENERAL: Let us first take the question of whether or not aliens are treated differently for the purposes of offensive action, if I may use that expression, or defensive action.

It seems to me that the Colonna case is exactly in point.

I am not now treating the difference between criminal and civil cases; I am treating whether or not they came into court to ask for relief or whether or not they are defending themselves.

MR. JUSTICE ROBERTS: You say Colonna was defending his possession of the ship?

THE ATTORNEY GENERAL: Exactly.

The two rights are precisely the same.

Why is not that an answer to the suggestion of the Chief Justice that the distinction should lie there, when the Italian Government came in and said, “You have taken my boat; I have the prerogative of a sovereign.

MR. CHIEF JUSTICE STONE: It would raise a rather nice question there; but, as I take it, this ship was seized not out of the possession of the Italian Government, but out of private possession, and the Italian Government came in to establish title to the property which had not been in its possession.

MR. CHIEF JUSTICE STONE: I assume that the Italian Government could not bring suit to quiet title in our courts, but that if it were in possession and its prerogatives were being assailed, that might be heard as a defense.

THE ATTORNEY GENERAL: But are we not basing this looking through forms and seeing whether it is offensive or defensive?

MR. CHIEF JUSTICE STONE: Precisely.

I think it is the duty of the Court in coming abreast of habeas corpus to look through forms.

THE ATTORNEY GENERAL: The second and more interesting question is whether or not aliens during time of war should be treated differently in criminal cases than in civil cases.

I know of nothing in the law which says so.

For the purposes of waging war, the importance of the power of the Executive and of Congress over control of aliens is certainly as important over control of their persons as it is over control of their property.

So, I can find no difference on that basis, either in logic or in the cases which say that aliens shall be permitted to defend themselves in criminal cases.

It is true that aliens are permitted so to do, but how are they permitted?

They are permitted under the laws of the United States as evidenced in certain instances by the proclamations of the President, and the basic reason for that-

For instance, during war it is the license or privilege of an alien who has lived for many years in the country-

That can be changed by statute by Congress at any time.

No constitutional question is involved.

The question seems to me to be: What is the law with respect to aliens?

For that law we look to the Act of 1917, as brought back in this war; we look to the Act which I quoted yesterday, the Act of 1798; and we look to the President’s Proclamation.

There are one or two cases which I should like to point out, which may throw some light on it.

MR. JUSTICE REED: Before you pass that, may I ask a question, Mr. Attorney General?

You speak of the right of an enemy to come into court, and you also connect that with the Order of the President.

Would you take the same position if there were not a valid order of the President?

THE ATTORNEY GENERAL: I think that there is nothing in the statute which permits them to come into court without the proclamation.

MR. JUSTICE REED: Without the proclamation.

THE ATTORNEY GENERAL: Therefore, I think that at common, law and under the statutes to which I have referred they have no right; but to close any possibility, the President signed a proclamation.

MR. CHIEF JUSTICE STONE: Assume that your opponents are right in saying that there is no jurisdiction in a military court to try the case of these people on its merits.

Would a proclamation change that?

THE ATTORNEY GENERAL: Oh, I think not.

MR. CHIEF JUSTICE STONE: So, we come down to the question whether or not these men, in the circumstances of this case were following what has been called the Law of War, and whether under the Law of War they are subject to summary disposition by the military authorities?

THE ATTORNEY GENERAL: That is right.

MR. CHIEF JUSTICE STONE: That is really the crux of your case?

THE ATTORNEY GENERAL: Yes.

I think, Mr. Chief Justice, that perhaps I answered your question a little too quickly.

I think it is conceivable, as I just pointed out in the opening of this argument, that the powers of waging war, of raising armies, of making regulations governing the armies, and the powers of the President as Executive and Commander-

It is conceivable that if there were no statute, or even if the statute, as in the Milligan case, specifically provided that these men under certain circumstances could not be tried by a military tribunal, the President, in the exercise of his great authority as the Commander-

MR. CHIEF JUSTICE STONE: We do not have to come to that?

THE ATTORNEY GENERAL: You do not have to come to that; that is all I said.

But I wanted to be perfectly accurate in my answer.

MR. CHIEF JUSTICE STONE: As relating to that, I call your attention to the fact that you said it might have been argued in the Milligan case-

THE ATTORNEY GENERAL: Yes, but it was not.

MR. CHIEF JUSTICE STONE: You referred just a moment ago to the part of the majority opinion in the Milligan case which said that there could be no control by a commission as long as the courts were open.

THE ATTORNEY GENERAL: Yes.

MR. CHIEF JUSTICE STONE: Was that said with reference to the suspension of the writ under the martial law provisions of the Constitution?

In other words, was the court doing more than addressing itself to whether that was a proper case for martial law?

THE ATTORNEY GENERAL: I think not, Mr. Chief Justice; I think the Court went very much further, and I think that Mr. Chief Justice Chase’s decision-

MR. CHIEF JUSTICE STONE: This man was tried according to the Laws of War?

THE ATTORNEY GENERAL: Yes, but it was held that the Laws of War did not apply in a peaceful community like Indiana and that the invasion, which had occurred a year or so before, was not sufficient to permit the test under which martial law could apply.

MR. CHIEF JUSTICE STONE: Was he an enemy?

THE ATTORNEY GENERAL: No, Milligan was a citizen of the United States.

MR. CHIEF JUSTICE STONE: I suppose a citizen might be an enemy?

THE ATTORNEY GENERAL: First you asked, was he a citizen?

MR. CHIEF JUSTICE STONE: Yes.

THE ATTORNEY GENERAL: I do not think that he was an enemy was proved in the case.

I think clearly he was an enemy.

Clearly he was an enemy on whatever side of the line you want to draw.

MR. JUSTICE FRANKFURTER: Neither the Milligan nor the Merryman case went under the enemy concept?

THE ATTORNEY GENERAL: No, sir.

MR. JUSTICE FRANKFURTER: That was not the atmosphere of those cases?

THE ATTORNEY GENERAL: No.

MR. JUSTICE BLACK: He was not charged with being a spy?

THE ATTORNEY GENERAL: No.

The specific charges were that he entered into a conspiracy under which he was going to relieve Confederate prisoners and, having done so, was going to get into the arsenals to obtain ordnance for the Confederate Army.

I do not think there was a specific charge of spying in the Milligan case.

MR. JUSTICE BLACK: In view of the statute.

Articles 81 and 82, do you think that makes any difference?

THE ATTORNEY GENERAL: No, I do not think so, because I think that irrespective of Articles 81 and 82, had they not existed-

MR. JUSTICE BLACK: Do you think the fact that they do exist now and that there was a charge that these men were engaged-

THE ATTORNEY GENERAL: I do not think that adds, because if they did not exist now, we could have tried them on the same charges under the Laws of War.

It just happens that the Laws of War were codified, and there they are.

MR. JUSTICE FRANKFURTER: The suggestion is that by implication it negatives or restricts the area?

THE ATTORNEY GENERAL: Yes.

MR. JUSTICE FRANKFURTER: That is the suggestion?

THE ATTORNEY GENERAL: Yes.

You mean the proclamation.

MR. JUSTICE FRANKFURTER: Do you say that Articles 81 and 82, being explicit, impliedly exclude the generality of the Law of War, just as in the Milligan case?

THE ATTORNEY GENERAL: “Article 81.

Relieving, Corresponding With, or Aiding the Enemy.

” Because this Article defines a certain type of spying, I do not think it necessarily excludes other acts of persons coming through enemy lines for the purposes of military acts against the United States.

MR. JUSTICE FRANKFURTER: Because you derive this from implications of the Commander of the Army?

THE ATTORNEY GENERAL: Yes.

MR. JUSTICE BLACK: Whether or not it did, is it your construction of your charges that they come within the scope of either Article 81 or Article 82?

THE ATTORNEY GENERAL: Clearly.

Whosoever relieves or attempts to relieve the enemy with arms, ammunition, supplies, money, or other thing, or knowingly harbors or protects or holds correspondence with or gives intelligence to the enemy, either directly or indirectly, shall suffer death.

The question is: Is that offense charged in those specifications?

In that, during the month of June, 1942, Edward John Kerling (and others), being enemies of the United States and acting for and on behalf of the German Reich, a belligerent enemy nation, were, in time of war, found lurking or acting as spies in or about the fortifications, posts, and encampments of the armies of the United States and elsewhere.

Stop-

It is an accepted principle of courts martial and of military tribunals that the charges do not have to be spelled out in the minute way in which they have to be spelled out in those states where indictments are most liberally construed.

I have not the slightest doubt that that rather general charge, using the language of the statute, is amply sufficient.

MR. JUSTICE FRANKFURTER: The charge sheet purports very explicitly to charge an offense under Article 81 and another one under Article 82, does it not?

THE ATTORNEY GENERAL: Yes.

MR. JUSTICE BLACK: Assuming that that section is fully as we understand it to be, that the charge is passed on, that the charge is made, why is it necessary from your standpoint to seek to overrule the military or to modify it in any manner whatever?

THE ATTORNEY GENERAL: I think only the fact that the Milligan case is bad law and that the Milligan case would definitely throw it out on the constitutionality of that statute.

The Milligan case would say, I take it, that that statute if applied to the circumstances of this case is unconstitutional.

MR. JUSTICE BLACK: Would it say that as to spies?

THE ATTORNEY GENERAL: It would say it if Milligan had been charged as a spy, because the essence of the Milligan case was the territorial limitation of martial law and the territorial limitation of the rights of military tribunals.

MR. JUSTICE FRANKFURTER: Do you mean that there could not have been spies in Indiana in 1863?

THE ATTORNEY GENERAL: Surely, but they would have said, “He is a spy who shall be tried by a court of law, not a military court.

MR. JUSTICE JACKSON: I understood both from your brief and from your argument yesterday that it was your purpose to suggest that the Milligan case was so far different from the facts of this case that it did not constitute a precedent to which we would be likely to defer.

THE ATTORNEY GENERAL: That is true, Mr. Justice Jackson.

You can satisfy all the requirements of this case without touching a hair of the Milligan case; but this petition would not have been in this Court except for the Milligan case.

MR. JUSTICE FRANKFURTER: You want to touch the head as well as the hair?

THE ATTORNEY GENERAL: Yes.

MR. CHIEF JUSTICE STONE: That depends, I suppose, on whether the statement by the majority in the Milligan case was one of dictum or was one of the grounds of the decision.

THE ATTORNEY GENERAL: I could not say whether a thing is dictum.

It could have been decided on the narrower issue, but the Court decided it on the broader issue.

If the definition is dictum, as the narrower ground must be, on which the whole Court agrees, then it was; but I do not think it is a definition of dictum.

I think dictum is that form of expression which was not the basis of the decision of the case.

But whether you call it dictum or not, there it is as a strong law.

MR. JUSTICE JACKSON: Do you not think it is time for us to consider whether the Milligan case ought to be overruled?

We would know at least what is proposed to be done if the Milligan case interferes with it.

THE ATTORNEY GENERAL: I think, Mr. Justice Jackson, that that is a matter of the policy of the Court-

which obviously by its implications interferes with the appropriate execution of orders of the Commander-

That seems to me to be a matter of policy and perhaps need not be decided solely on the narrower ground.

MR. JUSTICE JACKSON: Unless you show where it interferes, we do not know what you want to do.

The difficulty I have in deciding a case in the dark, as to what you want to do, is just that.

If we are to set aside the Milligan case, we ought to know what we are setting it aside for.

THE ATTORNEY GENERAL: It is argued by the petitioner that the Milligan case applies here.

We think it does.

But even if it does apply, it is not very good law.

It is a little difficult to know what rights aliens have outside of the statute.

Without laboring the point too much-

If you will refer to page 17 of my opponent’s brief-

MR. JUSTICE REED: Are you referring to an alien or an enemy?

THE ATTORNEY GENERAL: I am referring to alien enemies.

Is that what you ask?

MR. JUSTICE REED: Whether it was aliens or enemies.

THE ATTORNEY GENERAL: The language usually is “alien enemies,” and in most cases that is the problem.

The problem almost always is what rights alien enemies have, and it comes up in that way.

But the basic argument goes to the fact that they are enemies.

MR. JUSTICE JACKSON: That does not appear on the face of the petition.

The appellant’s position does not show that.

THE ATTORNEY GENERAL: The facts alleged in the petition are stipulated to be true.

MR. JUSTICE JACKSON: The question is whether we should consider those facts on the motion for leave to file the petition or whether, on leave to file, we should consider a matter which is only, as I understand, your stipulation, in case it is filed.

THE ATTORNEY GENERAL: I do not think the stipulation narrows it to its availability in case it is filed.

The stipulation provides, I think, that it is stipulated and agreed by and between counsel that the following facts shall be deemed to be true for all purposes on the hearing of these causes.

Is not this the hearing of the causes?

MR. JUSTICE JACKSON: Well, I suppose it is; but I just wondered what counsel intended to state.

THE ATTORNEY GENERAL: Counsel clearly intended that on this argument today we could refer to all the record.

Am I right, Colonel Royall?

We could refer to the record and use the stipulation in this argument that we are now engaged in?

COLONEL ROYALL: To the extent that the Court thinks it material and relevant.

THE ATTORNEY GENERAL: Well, of course.

If I may be permitted to go back to this enemy question, on page 17 of the petitioners’ brief it seems to me that the authorities cited by my opponent are authorities precisely for my position in this.

In any event, even if the courts are reluctant to encourage resident enemy aliens in commercial transactions, they should at least protect their bodily security.

Certainly; then look at the circumstances: until positive executive action to the contrary.

-

So also in the case of Kaufman v, Eisenberg in 32 New York Supplement 2d.

It is my view that until it is manifested by legislative or presidential pronouncement that the right of a resident alien.

I think it has been pretty clearly announced by the Proclamation.

If you will refer to page 18 of my brief, I should like to add a case which I think the Court would wish to read.

Although it slants against me, I think it is one of those cases which should be examined.

It is not cited in the brief.

It is the case of Birge Forbes Company against Heye.

The citation is 251 U.S..

317.

That was a very interesting opinion by Mr. Justice Holmes.

In that case a German cotton broker before the outbreak of the last war had obtained a judgment against an American cotton exporter.

On appeal from the judgment, and war having broken out before the appeal was argued, it was argued that the judgment should be reversed in favor of the alien, on the ground that he was an alien.

judgment, but based his decision, I think pretty clearly, on the fact that the Government was protected because the money would have to be paid to the Alien Custodian and that there was no reason of public policy which should in any way lead the Court to even so modify the judgment that if there had been any such policy found in the Proclamation, or otherwise, the Court might not have taken the same position.

There is one other case which, though in a state court, it seems to me to be perhaps worth looking at, and that is a case which is not in the brief and might be put perhaps on the same page.

It is the case of Krachanake against Acme Manufacturing Company.

It is found in 175 North Caroline 435 or 955 Eastern 851, if that is more convenient.

I think the decision was wrong in that case.

The court stayed a case for personal injury brought by an alien.

An alien shall be accorded the consideration due all peaceable and law-

I think clearly the Proclamation under those words should have permitted the suit.

But there are two reasons why I cite the case.

First, the courts, in looking to the policy, as I said yesterday, look at the executive action in the Proclamation of the President; second, those words in the Wilson Proclamation were omitted in the Proclamation of President Roosevelt immediately after Pearl Harbor.

I do not think it is very important, but I think it is a slant in the case.

Mr. Justice Black yesterday asked me a question which I felt perhaps was not sufficiently answered, and that was: What body, if I understood correctly-

-

I mean, what body could determine this question.

My answer is that in time of war it is for the President’s determination, and that the President having delegated it to his Commission, the exact jurisdictional fact which must be determined is for the Commission to determine.

MR. CHIEF JUSTICE STONE: What fact are you referring to?

THE ATTORNEY GENERAL: The jurisdictional fact of whether or not these persons come under the proclamation.

Am I correct in stating the question?

I thought that was what you had in mind, Mr. Justice Black.

MR. JUSTICE BLACK: The question I asked was: Where the charge is made that a citizen is doing a certain thing, and that is given as the basis for a military commission’s jurisdiction, who determines it?

You get down to the question of whether he has a right to have any particular fact determined in a civil court or whether it is to be determined by the military commission.

THE ATTORNEY GENERAL: Our position is that he has no right to have any fact determined by a civil court.

That is an extreme position and not necessary for the determination of this case.

MR. CHIEF JUSTICE STONE: We do not have to deal with that.

THE ATTORNEY GENERAL: You do not have to deal with that at all.

MR. CHIEF JUSTICE STONE: On your argument you say that the stipulated facts plus the charges establish the authority of the President, under the Law of War, and that he can apply it under the Constitution?

THE ATTORNEY GENERAL: And that is why I say it is an extreme that is unnecessary for me to assume; but, having answered the question, that is my answer.

In other words, this case does not deprive a man-

MR. JUSTICE ROBERTS: What is the difference, if we look at the facts, whether they are controverted or stipulated?

THE ATTORNEY GENERAL: I do not think there is any.

MR. JUSTICE ROBERTS: We are examining the facts that appeared before the Commission hearing the case, are we not?

THE ATTORNEY GENERAL: That is right.

MR. JUSTICE ROBERTS: The question is how far we go, if we go at all.

THE ATTORNEY GENERAL: It may be that you will look at nothing but the charges themselves.

MR. JUSTICE BLACK: The question in the final analysis is: What tribunal has the right under the Constitution to determine questions of the guilt or innocence as charged?

THE ATTORNEY GENERAL: Precisely.

MR. CHIEF JUSTICE STONE: Would you say that the courts could not look to see whether there was any foundation whatever for the charges?

THE ATTORNEY GENERAL: If you push me to that extreme, I would say that I will say that; but it is unnecessary for me to say that.

MR. JUSTICE ROBERTS: What do you say about a court martial, if a man is in the military service?

The Constitution recognizes the military jurisdiction?

THE ATTORNEY GENERAL: I am to assume that there is no war and that the Question assumes that there is peace?

MR. JUSTICE ROBERTS: The military law is the same whether there is war or not.

It has administration as against officers and enlisted men of the United States Army.

THE ATTORNEY GENERAL: Yes, but those circumstances under which a special commission may oust all other citizen tribunals in time of war should be considered, it seems to me.

It seems to me, then, that the Question here is not whether this man should be permitted to exercise his right.

The Question is: What tribunal is properly constituted in which he is going to exercise it?

Therefore, it seems to me not logic to say that in time of war peace tribunals will not hear any rights of persons taken under these charges.

But, as I say, that is a position which it is not necessary to reach in this particular case.

MR. JUSTICE JACKSON: Why is it necessary, if we may consider the stipulated facts as true, to go into either the President’s Proclamation or the Milligan case?

You have the stipulated facts, and you have a military operation against the United States.

THE ATTORNEY GENERAL: That is true.

MR. JUSTICE JACKSON: Unless we choose to substitute our judgment that these people were really refugees.

THE ATTORNEY GENERAL: That is true.

MR. JUSTICE JACKSON: Now, if that is true, you take the position that they did not have any rights in the civil courts, and, of course, the President’s Proclamation has taken nothing away from them in that case, and we do not need to consider it?

THE ATTORNEY GENERAL: That is right.

MR. JUSTICE JACKSON: Are not we making something terribly complicated here that really is not?

THE ATTORNEY GENERAL: Yes; or you might simplify it in another direction.

You might say that, the President’s Proclamation having stopped at the threshold, you do not care to look at the facts.

That might be simpler.

We urge that, from our view, as more practical.

MR. JUSTICE JACKSON: Suppose it appeared that there was a reasonable range of doubt as to whether they were refugees.

THE ATTORNEY GENERAL: It does not make any difference.

MR. JUSTICE JACKSON: It might very well be said that the Commander-

THE ATTORNEY GENERAL: I would put it much more narrowly than a “reasonable range.

” I would say if there was any evidence.

MR. JUSTICE JACKSON: You do not have to say that.

It is enough to say if it is reasonable.

MR. JUSTICE FRANKFURTER: If you go on that line, Mr. Attorney General, then you revert to the argument you made a few minutes ago; namely, that the burden of the exercise of his military powers under the Constitution could provide that all German aliens entering this country are detrimental to the conduct of this war, and there fore access to the courts would be denied them, refugees or not?

THE ATTORNEY GENERAL: Certainly.

MR. JUSTICE FRANKFURTER: That is a very different line.

THE ATTORNEY GENERAL: That is a very different line.

MR. JUSTICE FRANKFURTER: These people have entered the defensive boundaries of this country and have therefore been engaged in military operations and can be dealt with in a military way?

THE ATTORNEY GENERAL: Precisely.

MR. JUSTICE FRANKFURTER: That is a very different question.

THE ATTORNEY GENERAL: That is very different, and, as Mr. Justice Jackson said, when we spoke of aliens, you treat them differently according to what the circumstances of the aliens are.

That is perfectly obvious, we have been doing it right along.

MR. JUSTICE REED: We are not testing some other proclamation.

THE ATTORNEY GENERAL: No; it is this.

However, of course, the President is interested in this Court’s sustaining to the limit the power of the President in court, to which I have so constantly referred.

I think I won’t argue, which is in the brief, the question of whether these prisoners come under this proclamation.

It seems to me so obvious that they do that it is hardly worth wasting any time on that argument.

Now a word first about the offenses themselves.

These offenses we claim are offenses not only under the Articles but under the common law of war.

Then a word about the offenders.

Has the Commission jurisdiction over the offenses and over the offenders?

As I have said already, the landing in the case refers to a common law of war.

Mr. Justice Jackson asked me yesterday if I could give him some citation with respect to the Law of War.

There are many in the brief.

MR. JUSTICE JACKSON: I referred to something in particular that I did not find and which I thought was in one of the conventions-

I thought it was in there and I did not find it, and I did not know whether you might have the citation; but you need not bother.

THE ATTORNEY GENERAL: I think it is found in the footnote on pages 31 and 32.

May I look at it for a moment?

Now, all of this law, Mr. Justice Jackson, of course is not found in common law reports.

It is found in history, in books and treatises, in opinions of the Judge Advocate General, and in accounts of what actually took place on the battlefield.

Thus where certain persons made their way early in the late war from Scotland to South Carolina.

MR. JUSTICE JACKSON: No one questions it.

I thought it was embodied in the conventions to which Germany was a party, the country of which these persons are nationals.

I did not find it, and I did not know whether you might have the citation which I had overlooked.

THE ATTORNEY GENERAL: I think I am right in saying that The Hague Convention is not binding, because, as I remember, The Hague Convention, it is not binding unless signed by all the countries at war.

The reason we referred to The Hague Convention is that it embodied and summarized a certain Law of War.

I do not remember whether it is found in that Convention.

It is found, of course, in the Rules of Land Warfare, which I have cited in the brief.

Mr. Cox points out that the Rules of Land Warfare had been adopted, as we set forth, by the Hague Convention.

That is found on page 32 of our brief.

We then refer to the Rules of Land Warfare.

I do not mean the rules in the sense of this book that is used as a manual for the Army, but that the definition that was adopted, as I understand, by the Hague was then made a part of the manual of the text book for the Army.

However, that came out of The Hague Convention.

MR. JUSTICE JACKSON: The definition of belligerence is the same in both?

THE ATTORNEY GENERAL: Yes.

MR. JUSTICE REED: Does The Hague Convention undertake to codify the rules in treating those who are not prisoners of war or who have forfeited the rights of prisoners of war?

THE ATTORNEY GENERAL: Yes, precisely.

MR. JUSTICE REED: Does it deal with that affirmatively or does it deal with that only negatively, by saying that they are not entitled to be treated as prisoners of war?

THE ATTORNEY GENERAL: As I said, The Hague Convention adopted the rules found in the Rules of Land Warfare, and those rules are set out in my brief on pages 31 and 32, specifically providing that prisoners of war who take up arms without having complied with the conditions-

Does that answer that?

MR. JUSTICE REED: Yes.

Does The Hague Convention or do the Rules of Land Warfare, which we have published, as I understand it, in connection with The Hague Convention, specify how those who are not entitled to treatment as prisoners of war shall be dealt with?

Are there any affirmative regulations?

THE ATTORNEY GENERAL: That, Mr. Justice Reed, I do not know.

That is set forth, however, in a general way, on page 32.

It says: They may not, however, after being captured, be summarily put to death or otherwise punished, but may be brought to trial before a military commission or other tribunal.

What I meant to say is that I do not think that the rules contain specified ways other than that in which they shall be dealt with.

All military commissions have the broadest kind of military power, and it is very difficult, except in the Articles of War, to find any procedural common law of war, if you could call it that.

It is very difficult to find it, because the Army dealt with these people in the middle of a war pretty promptly, without any rules; but I think that answers the question as well as we are able to.

MR. JUSTICE REED: Do these people correspond to the definition of unauthorized belligerents?

THE ATTORNEY GENERAL: Yes, and they correspond with the definition of armed prowlers, Section 352.

MR. JUSTICE REED: When you come to armed prowlers, there is no similar provision such as there is for unauthorized belligerents.

THE ATTORNEY GENERAL: No.

It says they are not entitled to be treated as prisoners of war, and the provision before that says that they shall not be shot.

So that I think that armed prowlers are to be treated as unauthorized belligerents, reading the two together.

The first section says: Men and bodies of men, who, without being lawful belligerents.

Commit hostile acts of any kind.

The second provision, in order to make it perfectly clear that prowlers are considered the same thing, says: Armed prowlers, by whatever name they may be called,.

are not entitled to be treated as prisoners of war.

I am not quite sure if I quoted the Vallindigham case yesterday, but I might point out again that it says: “Military offenses, under the statute, must be tried in the manner therein directed” -

Again let me emphasize that that is the basic reason for a military commission.

The basic reason for and most of the activities of courts martial are for offenses committed by members of the armed forces in time of peace.

I do not say that that is the limit of their jurisdiction, but the rough distinction-

Why?

Because the defendant is usually an American citizen in the Army, whereas these same protections do not apply to commissions.

Why?

Because commissions are set up to try prisoners of war under totally different circumstances.

I think I shall not labor any more the question of offenses against the Law of War.

I come now to a discussion, very brief, of the jurisdiction of this Commission over the persons of these petitioners.

It is contended that the Fifth Amendment gives these persons certain rights.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.

I take it that the last phrase, “when in actual service in time of war or public danger,” applies to the militia, the militia being a civilian body and it being natural for Congress to provide that there shall not be military trials of militia men except in cases of war or public danger; that is, when they were called out for protection of the State.

Therefore, the question is: What is the meaning of “except in cases arising in the land or naval forces”?

I think under the authorities which I have cited and the cases that it is very clear that that does not mean-

I do not think the language is very clear, but the cases have always followed that construction.

Again, I am sorry that I have to burden the Court with two more cases that are not in my brief, but these cases, I think, are important.

One is In Re Craig.

You may wish to add the reference on page 39, because on page 39 of my brief are the citations, chiefly from authorities on military law, which support my view.

One of the two cases that I have reference to is In Re Craig, which is found in 70 Federal 969.

It was a Circuit Court for the District of Kansas case and was decided in 1895.

I shall not refer further to it because that case and the Wildman case, cited in my brief, and the case of Kahn against Anderson which I shall presently give you, all have substantially identical facts, so that I shall point out what the Supreme Court held without referring to the decisions of the lower court.

Kahn against Anderson is found in 2SS United States at page one.

All of these cases involve instances in which a member of the military force, a member of the Army, has been sentenced’ for a crime under the Articles of War and has been discharged-

He assaults the officer in command of the prison, or riots, or commits some other crime after he has been discharged, but while he is serving the sentence.

I say that that is authority, of course, only for the proposition that it is perfectly clear that a non-

The Supreme Court said-

In connection with this subject, we observe as a further contention that, conceding the accused to have been subject to military law, they could not be tried by a military court, because Congress was without power to so provide constitutionally with the guarantee as to jury trial and presentment or indictment by a grand jury, respectively secured and then the Articles of the Constitution are noted.

The Court said: This is also without foundation, since it directly denies the existence of a power in Congress exerted from the beginning and disregards the numerous decisions of this Court by which this exercise has been sustained.

The decisions referred to, I think, are decisions in which this question is not raised, but the exercise of the military under the circumstances as the Court said had been sustained.

It would, I think, be an extraordinary construction of the Amendment to provide that for offenses committed by our soldiers in time of peace the military comission would be sufficient, and that our American soldiers had no right to compel jury trials, and to hold at the same time that this constitutional Amendment permitted the soldiers of an enemy country at war with the United States to take advantage of the very clause from which American citizens were excluded.

I should now like to say a word about Ex Parle Milligan.

It has already been somewhat discussed, but I would like to briefly refer to it, if I may.

The discussion starts on page 41 of my brief.

I think the important thing to remember in Ex Parle Milligan is the Act of 1863.

There had been a great deal of criticism of the Government, in and out of Congress, over the arrest, both by the Secretary of State, Mr. Seward, and then by the Secretary of War, Mr. Stanton, of persons who were considered dangerous to the country and who were held without rights to go into any court at all.

As a result, I think, largely of that criticism, Congress passed the Act of 1863, which is the basis of the Milligan decision.

That Act provided that the President could suspend the writ but limited his action in suspending the writ in this way.

It was provided that where any persons were arrested by the military, within twenty days after the passage of the Act or within twenty days after the arrest the Secretary of War and the Secretary of State should submit lists of those persons to the district court: and that although under the Act the prisoners could be held with the suspension of the writ, law courts were sitting at that time and grand juries were in session, and the alleged offenses had to be brought to these grand juries.

A method was then provided under the statute by which, if the prisoners’ names were not on the list or had not been furnished, they then could come before the court on a petition, and the court could either direct them to file their own recognizance or else to hold them for civilian process.

Now, the Milligan petition was not, strictly speaking, a petition for a writ.

It was a petition alleging that he a citizen for twenty years in the State of Indiana, had been arrested by the military when the courts were open and when the grand jury was in session; and that he had been held for sixty days, alleging the circumstances bringing him under the provisions of the Act and asking that the Supreme Court direct that the provisions of the Act be enforced, and asking that he should be released from the control of the military and given his freedom or else held to be tried under the provisions of the Act of 1863.

The facts of the Milligan case, I think, are interesting.

It brings us back to a very pertinent question asked by Mr. Justice Frankfurter with respect to what could be considered the definition of the area of war.

In other words, that area, as Mr. Justice Frankfurter suggested, can very obviously be created by the invading enemy, as it can be created by the conditions in the area or by regulations of the army.

It is not a paper matter.

It is a matter of actual fact of the conditions in the territory.

Here it seems to me perfectly irrelevant what one command called this strip of beach.

The point is that, threatened by invasions of submarines and the constant sinking of our vessels along the coast, our patrols had been ordered to patrol that beach and be on the look-

That is the essential thing, not what were the names of the paper orders handed down with respect either to administration or to tactical activities in the area.

The Milligan case, as Mr. Justice Jackson has suggested, is totally dissimilar on its facts.

The basic dissimilarity is that the Milligan case was decided in 1866and that the conditions of modern warfare were not then created.

Indiana, as the Court pointed out, was not a rebellious State.

Indiana had not recently been invaded.

This man had been a citizen of that peaceful State for twenty years and there had been no military activities within the State.

It is obviously different from this case, in which German enemies invade the coast.

It is perfectly fair to admit that there can be no connection of the facts in the Milligan case with the facts in our case.

I spoke of the facts.

The majority of the Court went on to say, having dealt with the Act of 1863, and the Act of 1863 not having been followed-

However, the majority went on to say that wherever martial law has not been declared and the courts are open to citizens and to others-

The test seems to me a profoundly impractical one.

Whether the courts are open or not does not meet the issue of what is going on in that territory, and it would be preposterous for the law to be that the President could not take proper steps to repel and capture attacking enemies because he had not closed his own courts by proclamation.

MR. JUSTICE BLACK: Did the Milligan case go that far?

THE ATTORNEY GENERAL: I think the Milligan case absolutely went that far.

MR. JUSTICE BLACK: With respect to invading enemies or spies or a violation of what you said was a well-

THE ATTORNEY GENERAL: There is much confusion in the language of the Milligan case, but the Milligan case repeatedly sets forth the fact that where the courts are open and martial law has not been declared military commissions do not have any right to hear such cases.

MR. JUSTICE BLACK: Did it say it could try military offenses however?

You used the words “military offense.

THE ATTORNEY GENERAL: Well, there is language in the Milligan case which makes that very extreme talk a little uncertain.

MR. CHIEF JUSTICE STONE: Was it contended that that was a military offense?

THE ATTORNEY GENERAL: Oh, yes.

It was contended that this was an offense against the Law of War in the Milligan case, very definitely; and the Milligan case indicated-

MR. JUSTICE BLACK: That is because in those states there was a military domination which was authorized-

THE ATTORNEY GENERAL: That is true.

MR. JUSTICE BLACK: This man was charged mainly, as I recall it, with making political speeches.

He was charged with conspiracy, but linked up with it was the idea of civil offenses, which in the case of complete military domination by a conqueror, of course, would have been tried under military law.

But I do not understand that you need to go so far in this case.

I am not talking about which is correct, but I am saying that the Milligan case either directly or inferentially went to the extent of saying if there was an attempted invasion by a member of an enemy force he would have to be tried in that way.

As I recall it, the arguments of counsel recognized the distinction between members of the armed forces of this nation and direct members of the armed forces of another nation and recognized that they had traditionally been tried under military law; but implicit in it, it seems to me, is the distinction between military offenses in times of war and peace and those which are traditionally a part of the great body of military law.

THE ATTORNEY GENERAL: I think it is fair to say that, Mr. Justice Black, if one adds that the court’s continued insistence on the necessity of martial law having been declared certainly is proof that where an invasion did not occur, but where some military ocerations were going on, that declaration of martial law was one of the essentials on which the jurisdiction of the commission of the military power could be founded.

I think it is perfectly clear, because the court reiterated again and again the necessity for martial law.

MR. JUSTICE FRANKFURTER: Was there not a difference between the majority and the minority as to whether there was a military offense, it depending on whether there was a field of operation?

Was not there a clash on that?

THE ATTORNEY GENERAL: I think that was one of the differences, but I think that one of the major differences which Mr. Chief Justice Chase emphasized, if I may return for a moment to a portion of his dissent, is that a majority of the Court substantially held that no Act of Congress could have permitted Milligan to be tried under the circumstances of the case.

Now, of course, the circumstances, 1have said, are totally different from this case.

MR. JUSTICE FRANKFURTER: They all held that.

THE ATTORNEY GENERAL: The majority of the Court held that Milligan had to be tried under the Act of 1863, but the majority went much further than that and said that no Act of Congress could have permitted Milligan to be tried under the Circumstances of the case.

That was the majority, not the minority.

We think, therefore, that the power of Congress, in the government of the land and naval forces and of the militia, is not at all affected by the Fifth or any other Amendment the majority had held that the Fifth Amendment did affect that power.

Chief Justice Chase goes on to say this.

Congress has, therefore, the power to provide by law for carrying on the war.

This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns.

We cannot doubt that, in such a time of public danger and he is talking about Indiana at that time-

Congress had power, under the Constitution, to provide for the organization of a military commission, and for trial by that commission of persons engaged in this conspiracy.

The fact that the Federal courts were open was regarded by Congress as a sufficient reason for not exercising the power; but that fact could not deprive Congress of the right to exercise it.

Those courts might be open and undisturbed in the execution of their functions, and yet wholly incompetent to avert threatened danger, or to punish, with adequate promptitude and certainty, the guilty conspirators.

Therefore, it seems to me that if the dissenting judges felt that they had to use language as strong as this, they certainly felt that the majority had gone far a field in basing the reasoning of its decision on the fact that the courts were open.

I would like to say one more thing with respect to the Milligan case.

The expansion of modern warfare has been judicially recognized in the last war.

The last war takes judicial notice of what modern warfare is, as in the McDonald case, in 265 Federal.

This concerned a spy living in New York, who was giving information as to vessels sailing out of New York harbor.

Military authorities should have power to try spies wherever found; otherwise they may not be subject to trial for that offense.

The term ‘theater of war’ as used in the Milligan case, apparently was intended to mean the territory of activity of conflict that is what you had in mind, Mr. Justice Black.

With the progress made in obtaining ways and means for devastation and destruction, the territory of the United States was certainly within the field of active operations.

That is, the territory of the United States.

One of the lessons taught by this war is that the ocean is no longer a barrier for safety or an insurance against America’s being involved in European wars.

And that, may it please the Court, was written 22 years ago.

With the Court’s permission, I will say a few words with reference to the Articles of War.

I should like the Court to note this.

It is already in the brief, but when we come to discuss Article of War 10, the Article as it appears in your volume of the Manual of Courts Martial in 1928 is not correct.

It has been amended, as I set forth in the brief, but I think we ought to bear that in mind.

That is the only Article here relevant which has been amended, so far as I know.

I have already suggested the doctrine, in dealing with the Articles of War, that general courts martial are generally applicable in time of peace, and therefore that manners of standard procedure should and do more particularly apply to them than to commissions and other special military tribunals which are usually set up to meet specific circumstances, as this Commission was set up; and it seems to me that with that background the implications in the construction of these Articles become far clearer.

The first Article which deals with military commissions is Article 15, and it is very brief.

The provisions of these Articles conferring jurisdiction upon courts martial shall not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war be triable by such military commissions, provost courts, or other military tribunals.

The interesting language there is “by the Law of War be triable by such military commissions,” indicating what I have said, that military commissions were always considered the appropriate tribunals for trying offenses against the Law of War.

The next Article which perhaps we should consider is Article 38; and that really is the basic Article guiding us in the construction of the other Articles.

I will read it.

The President may, by regulations, which he may modify from time to time, prescribe the procedure, including modes of proof, in cases before courts martial, courts of inquiry, military commissions, and other military tribunals, which regulations shall, in so far as he shall deem practicable, apply the rules of evidence generally recognized in the trial of criminal cases in the district courts of the United States: Provided, that nothing contradictory to or inconsistent with these Articles shall be so prescribed.

It seems to me, in view of the suggestions that I have given the Court with respect to the history of comissions and because, as in Article 15, the commissions seem to be those bodies which dealt with special cases, that it becomes clearer that this Article means that rules may be prescribed for courts martial, for special kinds of courts and commissions, and when those rules have been prescribed for courts martial and commissions the President must adhere to them.

We must look to see what rules have been prescribed for commissions.

It seems to me that is a fairly simple construction.

The Commission shall have power to and shall, as occasion requires, make such rules for the conduct of the proceedings, consistent with the powers of military commissions under the Articles of War, as it shall deem necessary for a full and fair trial of the matters before it.

You see he there says that they must be consistent with the rules governing commissions; and as the Chef Justice suggested yesterday, if the Commission disregards the law with respect, let us say, to the two-

There is nothing in the Proclamation which provides that it shall disregard any rules.

On the contrary, it says “such rules as it shall deem necessary for a full and fair trial of the matters before it.

Such evidence shall be admitted as would, in the opinion of the President of the Commission, have probative value to a reasonable man.

Somewhere in their brief the petitioners raise the question of delegation of power; that the President has not properly delegated his powers to the Commission under the statute.

But the doctrine of the delegation of powers relates to the improper transfer of powers from one branch of the Government to another, and has nothing to do with the delegation of the Commander-

MR. JUSTICE BYRNES: Is it not conceivable that this refers to the Articles of War which prescribe certain rules as to the admission of testimony?

THE ATTORNEY GENERAL: Mr. Justice Byrnes, I think that it is not only conceivable, but true; and then we must look at those Articles which have reference to that procedure.

Article 23 applies specifically to military commissions, treating of the refusal to appear or testify.

The next one, Article 24, deals with compulsory self-

It applies to a military court or commission, so we are guided by that.

Article 25 provides when depositions are admissible.

That Article applies to commissions.

Article 26 provides before whom depositions may be taken, and applies specifically to military commissions.

Article 27 refers to records of courts of inquiry and military commissions.

You see that these Articles and the others which I have mentioned-

So that the inclusive argument of the petitioners that substantially all of these Articles apply to commissions is not accurate.

That is the basis of the whole argument.

Let me illustrate it, for instance, with Article 70, which is the one which I stated had been amended.

It says: No charge will be referred for trial until after a thorough and impartial investigation thereof shall have been made.

That was the old form appearing in the Manual.

Now, conceivably since the language is general, it might be argued that it shall be referred to a commission; and this is one of the things under which the petitioners are making a complaint.

But the amendment provides-

No charge will be referred to a general court martial for trial until after a thorough and impartial investigation thereof shall have been made.

No charge will be referred for trial until after a thorough and impartial investigation thereof shall have been made.

The argument, I take it, then would have been made by the petitioners that that did not apply to commissions; and yet c1early the history of the amendment shows that there was some ambiguity in the original provision and that Congress specifically amended it, so that the amendment was intended to make it apply only to courts martial, and that the type of language is the type of language which excludes commissions by mentioning courts martial.

So we can go all through these Articles.

It seems to me perhaps unnecessary to take them up in detail.

I think the basic theory of construction has been presented to the Court.

Article 46 is found on page 213 of the Manual for Courts Martial.

It is discussed in my brief on page 57.

That Article reads as follows: Under such regulations as may be prescribed by the President every record of trial by general court martial or military commission that clearly applies to Commissions reviewed by a reviewing or confirming authority.

There is in this case no record of a military commission received by a reviewing or confirming authority.

MR. CHIEF JUSTICE STONE: You mean, there is no requirement, or merely that it has not occurred?

THE ATTORNEY GENERAL: I mean that there is no requirement.

MR. CHIEF JUSTICE STONE: The President is not a reviewing authority.

THE ATTORNEY GENERAL: I was just coming to that.

He may be.

This Article, it seems to me, clearly is not an Article under which the President is permitted to issue regulations to govern himself.

It is for the governance of the reviewing officers.

In all criminal proceedings they go to the Board of Review.

Under this procedure, under the Proclamation, the record goes directly to the President.

MR. CHIEF JUSTICE STONE: That is at his direction?

THE ATTORNEY GENERAL: Yes, sir.

MR. CHIEF JUSTICE STONE: If it is to go directly to him, should not the order be submitted to the body provided for here, since he is the reviewing authority?

THE ATTORNEY GENERAL: Under such regulations as may be prescribed by the President.

That is, prescribed for whom?

Not for himself.

MR. CHIEF JUSTICE STONE: Why not, since what he has done is to make a regulation which, it is argued, is contrary to the requirements of the Articles of War made applicable to a trial before a military comission?

THE ATTORNEY GENERAL: In this connection I was trying to see, first, what the Article meant-

MR. CHIEF JUSTICE STONE: The argument is that the Articles of War applicable to trial by a military commission make the regulations and the President cannot set them aside.

THE ATTORNEY GENERAL: I understand; but it seems to me that this Article was not intended to apply to a case in which the President skipped the review board.

MR. CHIEF JUSTICE STONE: The suggestion is that the record be made applicable, and that the President, under his power to make regulations, if he makes regulations and acts inconsistently with them, is therefore acting contrary to the regulations.

THE ATTORNEY GENERAL: Certainly the President as President can prescribe the regulations which shall govern.

MR. CHIEF JUSTICE STONE: Provided they are not inconsistent with the Articles of War which relate to trial by military commission.

I understand that is your argument.

THE ATTORNEY GENERAL: Does it seem inconsistent where his own Judge Advocate, to whom he can refer the case, is actually trying the case and making the recommendation?

MR. CHIEF JUSTICE STONE: That brings you to Article 50-

THE ATTORNEY GENERAL: But this is a situation where the President’s own Judge Advocate, who is an appropriate reviewing authority under the Article, is himself trying the case and making recommendations to the President.

I think it is perfectly appropriate for the President to ask the prosecuting officer to review a case and report to him.

I do not think, of course, that it is appropriate in a habeas corpus matter to raise any of these procedural questions.

That is all they are.

I think it is most inappropriate.

MR. JUSTICE JACKSON: The claim here is that it is improper to hold these persons for trial before a military commission.

THE ATTORNEY GENERAL: If the sole question is one of jurisdiction, I cannot see how these questions go to jurisdiction, because the President’s Proclamation is specifically made subject to the law; so, very obviously, it seems to me, if there are parts of the Proclamation that are illegal they can be disregarded.

MR. CHIEF JUSTICE STONE: Is there anything in the order which provides for review, so far as Article 46 is concerned?

THE ATTORNEY GENERAL: No.

I thought of that, Mr. Chief Justice, and I hesitated in presenting it, because there is nothing in the order which requires him to do so.

MR. CHIEF JUSTICE STONE: What about Article 50-

Does that deal only with courts martial?

THE ATTORNEY GENERAL: It is specifically limited.

In dealing with Article 50-

MR. CHIEF JUSTICE STONE: It refers to Article 46, also.

THE ATTORNEY GENERAL: Yes; but I want to take 48 first, because there is language in Article 48 which I think throws light on this.

When the authority competent to confirm the sentence has already acted as the approving authority, no additional confirmation by him is necessary.

The authority in both instances is the President.

MR. CHIEF JUSTICE STONE: That comes back to the question of whether Article 46 applies to the President.

THE ATTORNEY GENERAL: But nevertheless, the authority competent to confirm the sentence is the President.

He has acted as the approving authority, and no additional confirmation by him is necessary.

MR. JUSTICE REED: Article 46 refers both to courts martial and military commissions?

THE ATTORNEY GENERAL: Yes; it refers to both; there is no question about that.

MR. CHIEF JUSTICE STONE: Would this be a record under Article 46?

THE ATTORNEY GENERAL: I am not quite sure what Your Honor means.

MR. CHIEF JUSTICE STONE: Would this be a record in this case?

THE ATTORNEY GENERAL: I think it would, clearly.

MR. CHIEF JUSTICE STONE: Article 50-

Before any record of trial in which there has been adjudged a sentence requiring approval or confirmation by the President under the provisions of Article 46, Article 48, or Article 51 is submitted to the President, such record shall be examined by the Board of Review.

The Board shall submit its opinion, in writing, to the Judge Advocate General, who shall, except as herein otherwise, provided, transmit the record and the Boards opinion, with his recommendations, directly to the Secretary of War for the action of the President.

Would these regulations govern trials by commissions, and can the President set them aside?

THE ATTORNEY GENERAL: Article 50-

Then it refers to cases in which the President’s approval of the sentence is required under Article 46.

Our argument is that Article 46 does not require review of any sentence imposed by a court martial, and that Article 48 refers only to courts martial.

MR. CHIEF JUSTICE STONE: Could the sentence be carried into execution without the approval of the President?

THE ATTORNEY GENERAL: No.

MR. CHIEF JUSTICE STONE: It requires confirmation by the President?

That brings in Article 46.

It is required to go to the President for confirmation.

THE ATTORNEY GENERAL: Under such regulations as may be prescribed by the President every record of trial by general court martial or military comission received by a reviewing or confirming authority.

Is this a record of a trial received by a reviewing or confirming authority?

MR. CHIEF JUSTICE STONE: It would seem so, if the execution is carried into effect.

THE ATTORNEY GENERAL: As I argued in the beginning, this Article seems to me to be intended to apply to the Board of Review and not to the President, because he, being the Commander-

MR. JUSTICE FRANKFURTER: In other words, he can make such regulations in each case as he deems proper?

THE ATTORNEY GENERAL: Yes, sir.

MR. CHIEF JUSTICE STONE: What about Article 38?

Is the power of regulation circumscribed?

THE ATTORNEY GENERAL: Certainly; but I claim that it is not a regulation circumscribing the circumstances in this case where it skips the Board and goes directly to the President himself.

MR. JUSTICE FRANKFURTER: In cases where the record goes to the President, something has to happen in addition to the sentence that is imposed by the Commission before there could be any execution of any sentence?

THE ATTORNEY GENERAL: Yes.

I suppose he would approve it or modify it.

MR. JUSTICE FRANKFURTER: Therefore, it has to go to him in the nature of things, because the Commission itself has no power to carry out the sentence, has it?

THE ATTORNEY GENERAL: No, sir.

MR. JUSTICE FRANKFURTER: Therefore the provisions of Article 46 will take care of Article 48.

When this record goes to him he would have to do something, so that it comes under the confirming requirements of Article 48.

But as to Article 46 it seems strange that the President should be told to issue regulations for his own conduct.

THE ATTORNEY GENERAL: If that is insisted on, it seems to me to be a strange construction; but if the President desires to make regulations for himself to act under, he can still do it.

MR. JUSTICE JACKSON: Suppose the President violates it: Could we have anything to say about it?

THE ATTORNEY GENERAL: No.

In military law, the Commander-

That is all any court martial is except, of course, as modified by Congress.

MR. JUSTICE JACKSON: If a military commission disregards the rights of parties there is no remedy, and that is the reason that the Milligan case was cited and is regarded as a landmark?

THE ATTORNEY GENERAL: I would not agree that it is regarded in that way.

I think it is well to remember that the Milligan case was decided after the war was over.

MR. JUSTICE FRANKFURTER: You have made one concession which is precisely within the scope of Colonel Royall’s argument, when you said, “except, of course, as modified by Congress.

THE ATTORNEY GENERAL: Perhaps I narrowed that too much.

I have always claimed that the President has special powers as Commander-

It seems to me, clearly, that the President is acting in concert with the statute laid down by Congress.

But I am glad you have brought up the point, because I argue that the Commander-

MR. JUSTICE ROBERTS: That is to say that the Articles of War bind him sometimes and sometimes they do not?

THE ATTORNEY GENERAL: No.

I do not say that, Mr. Justice Roberts.

I say that it is perfectly clear that in this case there is no conflict.

MR. JUSTICE ROBERTS: You mean, his action does not conflict with the Act of Congress?

THE ATTORNEY GENERAL: Yes, sir.

MR. JUSTICE ROBERTS: That is a perfectly understandable argument.

But I understood you to say that if he acted in conflict with the Acts of Congress it still was all right.

THE ATTORNEY GENERAL: I do not think I went quite as far as that.

I think we could imagine situations where the President could act, in repelling an invasion, irrespective of an Act of Congress.

He must have some constitutional power that Congress cannot interfere with, as Commander-

I think it is unnecessary for me to argue it here, first, because he has acted clearly under the Articles of War, and secondly, whether or not that procedure is followed is not for this Court to go into.

It seems to me that the Court has been asked to decide a moot question.

The President not having acted, you are asked to decide whether it would be legal if he did act.

I think, Mr. Chief Justice, also, if I am accurate in saying so, that.

Article 46 is the only case where there is a doubt.

The other sections very clearly deal with courts martial, if I am correct in my construction of Article 38.

In Articles 50-

The other points I claim are not well taken, because they come under regulations which do not apply to the Commission under my construction of Article 38.

Do I make myself clear?

MR. CHIEF JUSTICE STONE: Yes.

COLONEL ROYALL: May it please the Court: It departs a little from the orderly procedure but since this question is freshly before the Court, may I start by discussing Articles 46 and 50-

MR. CHIEF JUSTICE STONE: You mean, as to their meaning?

COLONEL ROYALL: It seems to me they are rather clear as to their meaning.

The only reason that I would discuss them further is that some questions were asked me yesterday by Mr. Justice Frankfurter and I sensed that I did not fully persuade him.

As to the meaning, it seems to me it is merely necessary to say that Article 46 is applicable both to cases which would go to the President if he were the appointing authority and cases that would go to another officer if he were the appointing authority.

The Manual for Courts Martial, which is the best construction of this Article, definitely holds that, the appointing authority and the reviewing authority or the confirming authority are the same; and if there were no Article 48 at all, every case, under the Courts Martial Manual, in which the President was the appointing authority would go to the President for confirmation or review.

The object of Article 48 is merely to provide that in those cases where the President is not the appointing authority they would go to him in addition to going to the appointing authority, if they come within certain classifications.

I do not care to talk about Article 50-

But as to Article 48 the Attorney General referred to the words “in addition” in the last clause.

That relates to the additional review in the first line.

That means a review in addition to the review provided by Article 46 for some authority other than the President; and that is the uniform construction, I understand, of the Article in actual practice.

Article 50-

Article 46 applies to military commissions; and Article 38 makes applicable to military commissions, even upon the application of the Attorney General, any provisions which expressly refers to it.

So it seems to me that it is perfectly clear and does not require any further discussion.

MR. JUSTICE REED: I do not quite understand your argument that the action of a military commission requires review by the President.

MR. CHIEF JUSTICE STONE: You may answer after the recess.

MR. CHIEF JUSTICE STONE: You may proceed.

COLONEL ROYALL: If I correctly understood the question asked me by Mr. Justice Reed, the answer is that the President having appointed this Commission, and having stated in his Proclamation itself that the record is to come before him for any action-

That is Manual 86, page 72.

The reviewing authority is the one to whom the record is sent.

So, these two add up to the fact that the officer appointing the court is the person to whom the record comes for confirmation and review.

MR. JUSTICE REED: What is Manual 86?

COLONEL ROYALL: Courts Martial Manual 86, interpreting these very provisions.

It is section 86, page 72, of the Courts Martial Manual.

I assume that your pages are the same as these.

That is rather express, and I do not think there is any serious doubt about that meaning.

MR. JUSTICE REED: That is section 86, on page 72?

COLONEL ROYALL: Yes.

I can read the language that is material.

MR. JUSTICE REED:

MR. JUSTICE ROBERTS: What is a summary court?

That is not a court martial?

COLONEL ROYALL: No.

No, it is section 87, on page 73, which is “Reviewing Authority.

MR. JUSTICE REED: That would require, as in the argument you made yesterday, that all the things that are applicable to a court martial are also applicable to a military commission?

COLONEL ROYALL: No, sir; that would not require that, for this reason: that Articles 46 and 50-

We have got to find out what “confirming authority” means.

It cannot mean one thing for a court martial and one for a military commission when it is provided for in the same section.

MR. JUSTICE REED: But Article 46 reads: No sentence of a court martial shall be carried into execution until the same shall have been approved by the officer appointing the court or by the officer commanding for the time being.

COLONEL ROYALL: Article 46 provides, then, that the sentence of a court martial shall not be carried into execution unless it has been approved by the officer appointing the court.

MR. JUSTICE REED: That is limited to a court martial?

COLONEL ROYALL: Under such regulations as may be prescribed.

We do not rely on the last sentence: every record of trial by general court martial or military commission received by a reviewing or confirming authority.

We have got to find out what “reviewing or confirming authority” means.

MR. JUSTICE REED: The question I asked was whether there must necessarily be a reviewing or confirming authority for a military commission.

COLONEL ROYALL: Well, apparently so.

That certainly implies it.

But whether or not it does, if this comes before the President for action, it must be either for confirmation or some other action, and, therefore, he is bound to be, at least, the confirming authority, and it is in the alternative.

Therefore, if it comes before him in any capacity for action, it must fall within that limitation, if the statute does not so mean, and it apparently does.

MR. JUSTICE REED: But in relation to Article 50-

I do not know whether that is applicable here or not.

COLONEL ROYALL: Of course, on the Courts Martial Manual’s construction of these sentences, I should think it would be; and where it applies to both commissions and courts martial, the construction would have to be the same, unless there was a difference in the wording of the statute.

But be that as it may, as I said before, the clear implication, it seems to us, of Article 46 is that it does require a confirming authority, and Article 87, to which I called your attention, and to which Colonel Dowell now calls my attention again, provides that the confirming or reviewing authority is the commanding officer who appoints the court.

Therefore, a review by the confirming authority under Article 50-

Therefore, both by the implications of Article 46 and the fact that in this very Order which we are challenging the President has constituted himself the authority to act, it seems to us inescapable that it does require a review before it reaches him.

MR. JUSTICE JACKSON: As I understood you to say yesterday, you agreed that no matter what any reviewing authority subordinate to the President might determine, the President could reinstate the sentence again and make the findings his own.

I presume that as Commander-

COLONEL ROYALL: My recollection is that I said that was true subject to errors in law, and it requires a review of the legal questions under Article 50-

He might physically be able to do so, but I do not think he could legally act contrary to a specific finding of law.

As to that, though, I am not certain.

MR. JUSTICE JACKSON: Do you think a subordinate could bind the Commander-

COLONEL ROYALL: I am not certain.

MR. JUSTICE JACKSON: Is not this whole matter of review a matter of relieving the President of passing on all the cases which require, theoretically, a possible review by the Commander-

His power is as Commander-

He might want to be advised by a reviewing board in some cases and not in others.

COLONEL ROYALL: I do not think that question arises, for this reason: You could say the same thing of a court.

It does not have to follow the law.

MR. JUSTICE JACKSON: That has been said of courts.

COLONEL ROYALL: I was not referring to any particular court.

MR. JUSTICE JACKSON: Purely academic?

COLONEL ROYALL: Purely academic.

But, at the same time, a person is entitled to a hearing on the questions of law.

Now, these provisions of Articles 46 and 50-

We say, in answer to the question which the Chief Justice proposed yesterday, and which he suggested again upon the Court’s rising today, whether or not we are premature in this, that it is a question which we deal with in our brief.

I think Mr. Justice Jackson raised that question today, also.

I think there are three answers to it.

I had two yesterday, but I have three today.

The first one is that this is a provision which is fundamental in the creation of the court.

I think we have an analogous situation if a legislature creates a court and expressly says that there shall be no review, and does it as an integral part of the court’s creation.

I do not believe the statute would be valid or severable.

I may be wrong, but I do not think it would.

MR. CHIEF JUSTICE STONE: Courts acted without review for a good many centuries.

COLONEL ROYALL: Yes, sir, I am sure they did, but I do not know of any criminal court under the American system.

There are none that I know of.

There may be some.

The other thing is a very practical question which has also its legal aspects.

Suppose this Order had said in so many words that upon the finding of the Military Commission the President, unless he desired to do otherwise, could order any man upon which the death sentence was imposed shot within an hour.

If that were spelled out in this Order, it would not take much argument to convince anyone that that would be an invalid provision.

This Order does not say that.

Maybe it is stretching it to say it implies it, though we say in our brief-

In any event, it leaves it to the discretion of the President, without any limitation or restriction, to act, just as I said he could act if it said so in words of one syllable.

Finally-

He has done so by appointing the Judge Advocate General as the prosecuting officer here; and the statute says that the record of trial shall be referred to the staff judge advocate general or the Judge Advocate General.

That term is so well known or has such a definite meaning in military procedure, I understand, that it can be argued that it means a judge advocate for some lesser unit than the entire Army, and that staff judge advocate general for the President, if the term were applicable, would mean the Judge Advocate General; and therefore the President, by appointing the Judge Advocate General the prosecuting officer, has made it impossible for him at any time to comply with this provision.

MR. JUSTICE REED: Suppose the Judge Advocate General were disqualified for any reason.

Could someone else act in his stead as acting judge advocate general?

COLONEL ROYALL: I do not know, sir.

It does not say that; it does not so provide.

It says, “the Judge Advocate General.

” But if he is disqualified in this case, he is disqualified by the very act which creates the Commission; and in the absence of some disqualification for which the President is not responsible, he could act.

MR. JUSTICE BLACK: Eliminating the consideration as to the quality of his review, why could he not act?

COLONEL ROYALL: Well, because I assume it is fundamental that a man cannot act in two capacities in a judicial inquiry.

MR. JUSTICE BLACK: That goes to the quality of the review?

COLONEL ROYALL: Well, sir, I should think it would go further; I should think it would go to his qualification to act at all.

He would act, in a sense, as judge and prosecutor.

That has happened in practice, but it has not been approved by the courts.

MR. JUSTICE BLACK: Then, your argument is not that it is impossible for him to serve, but that in placing him there it deprives your clients of the type of review which the Act contemplates?

COLONEL ROYALL: That would be certainly true.

I think that is certainly a somewhat safer position and as strong a position as we need to take, even if it does not absolutely disqualify him.

May it please the Court, I now wish to reply to certain other matters that have been discussed by the Attorney General.

I should like to state briefly what they are, so that if I do have to stop for questions-

I want to discuss the facts a little, first, because I felt a little precluded from discussing the facts heretofore, not knowing just where the element of confidence came in this case.

I have been somewhat relieved of certain restrictions that I had.

In the second place, I want to discuss this question of invasion and waging war, which seems to be one that certain members of the Court indicate is fundamental.

I want to discuss specifically the laws of war and spying, in view of what the Attorney General has said.

I have already discussed the procedural questions as far as I desire to discuss them.

I believe I will add one thing, so that I shall not have to come back.

I am not going to argue more about Article 38, because I dealt with that pretty thoroughly yesterday, but I do call your attention to one feature of it.

The language is inconsistent with or contrary to -

It is our contention that they are broad enough to mean that in material matters the Military Commission-

On the matter of facts, there are only certain facts which have been stipulated as appearing in the record.

The record is voluminous.

I will still be cautious about the facts I discuss, but since the Attorney General has gone into them in some little detail and has gone a little beyond the stipulation-

All of these men to some extent disclaim any intention of ever committing any hostile act.

I know that that is a sort of statement that must be weighed by any court that considers it; but in the case of one of the petitioners, the evidence discloses that he had been terribly mistreated in Germany; and that is corroborated by everybody and every word of evidence in the record; and that is indication that the reason why he was coming to this country was a reasonable inference.

In the case of the boy Haupt, let me state a few facts.

He was 21 years old when he left home.

He got into a little trouble about a girl.

That has happened to other boys 21 years old.

He went to Mexico on a trip.

This evidence is not contradicted.

He had been in America since he was five years old.

He had attended American schools.

He was an American boy in every sense of the word.

His parents were here; his relatives, or most of those whom he knew about, were in America.

He wandered around in Mexico.

Running out of money, he got aid from the German Consul.

He went to Japan.

He stayed there a little while.

He still didn’t like the conditions.

He then went to Germany.

America was not at war.

He landed in Germany on the day war was declared and was immediately viewed with suspicion by everybody.

He said-

He was a boy just entering his twenty-

He testified that at no time did he take any oath of allegiance to Germany or join the German Army or Nazi Party or renounce any right to his American citizenship.

MR. JUSTICE DOUGLAS: What relevancy does this have?

COLONEL ROYALL: It is material on the question of the right to institute this action as to whether he is an alien or a citizen.

It has been discussed quite fully by the Attorney General yesterday and by myself on the writ.

MR. JUSTICE DOUGLAS: Are you trying to establish that he is a citizen?

COLONEL ROYALL: Yes, sir.

His parents were naturalized, and he was a citizen before he left here.

MR. JUSTICE DOUGLAS: Is there such a thing as an enemy citizen?

COLONEL ROYALL: Yes, there is.

There is such a thing as an enemy citizen.

The Attorney General apparently seeks to draw a distinction between enemy citizens and non-

We do not admit that he was either an enemy or an alien.

We think these facts tend to show that he was neither.

He stated that at all times he intended to return to the United States.

The only evidence that he had ever joined the German Army or renounced his American citizenship is the merest hearsay, which this Court would not consider, whether the Commission admitted it or not.

He came back to America, went immediately home, applied for a job, and registered for the draft.

He went back to his parents.

We say that, it having been admitted that he was a citizen before he went to Germany and he having stayed in Germany only a short period from the time he got there, and then the war being declared so that he could not get home, on this stipulation there is nothing to justify the inference that he is not still a citizen.

The question has been asked: Why did he not report this thing immediately when he got back?

That has been pretty satisfactorily answered-

MR. CHIEF JUSTICE STONE: You are not saying that there was not enough evidence to go to the jury?

COLONEL ROYALL: I am not certain that there was evidence enough to go to the jury.

I doubt seriously that there was enough evidence to rebut the presumption-

MR. CHIEF JUSTICE STONE: I am not talking about citizenship.

You said a few moments ago that a citizen might be an enemy.

COLONEL ROYALL: Yes.

MR. CHIEF JUSTICE STONE: On the question whether he was an enemy, irrespective of his citizenship, would you say you would not argue that there was not evidence enough to go to the jury?

COLONEL ROYALL: I could not say that there was not evidence enough to go to the jury on the question of being an enemy.

MR. CHIEF JUSTICE STONE: Assuming all the other elements of military trials, would that oust jurisdiction of a military court?

COLONEL ROYALL: It is our contention that neither the fact that he was an alien nor the fact that he was an enemy would oust jurisdiction of this Court.

MR. CHIEF JUSTICE STONE: That goes to the question whether there is power to try by commission enemies in certain circumstances?

COLONEL ROYALL: That would be true, sir, if he were an enemy; but I want to make this further observation, may it please the Chief Justice, if I may.

MR. CHIEF JUSTICE STONE: Yes.

COLONEL ROYALL: We do not think that on a jurisdictional question this Court can deny jurisdiction, because there is evidence from which a jury might find those facts.

MR. CHIEF JUSTICE STONE: Of course, every trial involves a determination, in some manner, of the matter of jurisdiction.

If there is a right to have a military trial, and the fact whether the individual tried is or is not an enemy determines whether the court may act, is it not unavoidable that it may determine that question?

COLONEL ROYALL: I do not think so, sir.

That may be the law, but there is certainly no case to the contrary in those cases, one of which was cited by the Attorney General, where the question of internment-

Let us consider the example which was suggested in a question asked this morning.

Here is a man walking along the street.

A military court picks him up and says he is a soldier.

Let us assume that one man swore that he had enlisted, and 99 men swore that he had not.

Would he be deprived of going into the civil courts to determine whether a military court could try him?

I do not think so, and I think, while the question may not be only absolutely the weight of evidence, there must be some substantial, and at least to some extent convincing, evidence in order to deprive this Court of the right to make inquiry into it.

MR. JUSTICE FRANKFURTER: On that argument, Colonel Royall, would it not follow that this Court would be under a duty to read this whole record, on the basis of the argument you have just made, namely, that there is an absence of what you call substantiality?

COLONEL ROYALL: I should think that would have to be true unless the stipulation of the parties has indicated otherwise or unless it should hereafter indicate otherwise.

I do not think the Court can take something I say is in the record or that the Attorney General says is in the record unless there is a stipulation which controls it.

MR. JUSTICE JACKSON: If a question of fact has to be decided as to whether these people were refugees, as I might call them, or invaders, obviously it will be decided by the people who face them across the table, who see them and have a chance to hear their stories at first hand and on cross-

Every appellate court has always held that questions of veracity-

We should not be asked to review information of that kind on the whole record, nor could we very well anticipate that if your clients made a convincing story that they escaped cruelties in Germany the Military Commission would not give consideration to that either in fixing the sentence or in the finding of guilt.

COLONEL ROYALL: What Mr. Justice Jackson says would ordinarily preclude any further discussion of this matter.

The only answer to that is a practical one.

Time being substantially of the essence, whether the Court ought to be asked to do that or not, it looks like it is inevitable in this case that it should.

MR. JUSTICE JACKSON: I am not complaining about the time.

It is a fact that you cannot determine veracity by a cold record.

No appellate court, so far as I know-

That is for the jury or the trial commission; and if the veracity of your clients is at issue, you should certainly attempt to decide it.

COLONEL ROYALL: However, the further answer is that, from the admitted facts, facts undenied in this record, in the case of the petitioner Haupt, there is no substantial evidence that he is not a citizen and no substantial evidence that he is an alien.

MR. JUSTICE FRANKFURTER: In order to be sure that I fully understand the implications of your argument, will you be good enough to answer this question?

Assuming-

COLONEL ROYALL: No, we would not.

MR. JUSTICE FRANKFURTER: Your position is the opposite, is it not?

COLONEL ROYALL: It is.

We would not admit that.

I think I have not made that clear.

We do not admit-

But I am merely bringing up the question of citizenship because the Attorney General has argued so strenuously that there should be a distinction between a citizen and an alien.

MR. JUSTICE FRANKFURTER: I know that you covered this ground yesterday, and if I may say so, very well.

In order to focus further discussion on it, is the essential reason why you so contend that in the circumstances of their landing and in all the other circumstances that which they did, in relation to the total geography, was not an action in the sphere of war?

COLONEL ROYALL: That is substantially what our contention is.

Skipping something that I was going to say first, I will come to that.

MR. JUSTICE FRANKFURTER: I did not mean to cut you off.

COLONEL ROYALL: No, sir; it is just as convenient to discuss this now.

We say that these people were not engaged in waging war against the United States in the sense that that would make the place where they were acting a theater of military operations.

We further say that this action in appointing this Military Commission could not be construed as an act of the Commander-

It may not be conclusive, but it is persuasive that these men came ashore without any personal arms.

They brought explosives, but the evidence disclosed that for those explosives to be effective required a considerable course of conduct.

Those explosives were buried on the seashore.

Nothing was done by any of these petitioners to make them effective.

No location was ever selected for their use.

No specific plan was made for their use.

These petitioners merely came ashore with the means by which after time and preparation they could commit sabotage, and they buried those means and left them.

They were not apprehended on the beach and not apprehended in the theater of operations, but were apprehended a week or ten days later in Chicago and New York, considerably removed-

They were not taken in charge by the military authorities to repel invasion, but were arrested by the civil authorities and asked to sign, and agreed to sign, civil waivers, which appear in our record and are attached to our petition, providing for their arraignment before a district court, providing for their removal to another district for trial.

It seems to me that if we say that taking these men away from the civil authorities and putting them under the custody of the Army is an act of the Commander-

It may not be material, but it is a fact that the coastal line where these men landed, while it had a patrol, did not have an armed patrol.

The Coast Guard was totally unarmed.

None of these men carried any species of weapon.

To say that that is a battlefront, when unarmed men land from a submarine and other unarmed men are patrolling the coast, is, it seems to me, to stray pretty far from realities and actualities.

MR. JUSTICE DOUGLAS: To what point is this argument addressed?

That no crime was committed here?

COLONEL ROYALL: No, sir, it is not.

The argument is addressed to this, sir: We advanced the argument yesterday that in order for a military commission to have jurisdiction, an act must be committed in the theater of operations.

Since Mr. Justice Douglas was not here, I shall go back to that briefly.

I was going to mention it anyhow.

The only authority for any action in the trial of these men by military commission, in denying them the ordinary civil process-

That is pretty well established, we think.

Therefore, we have to see what they mean by “in connection with land and naval forces.

Ex Parle Milligan contains three definitions of what is meant.

Incidentally, Ex Parle Milligan, in answer to some question that was asked, deals expressly with the Law of War.

It was advanced by the Government in that case.

Unless they show that this was in connection with land and naval forces, the crime cannot be tried before a military commission.

That is the reason why it is material to know what sort of zone they landed in or whether this was a part of a military action by the Executive.

It was mentioned yesterday that capture on land and water might enlarge the powers of the Legislature or the Executive, but that clearly applies to and is in connection with prizes; it applies to the capture of material goods.

I think the decisions under it rather clearly indicate that, although now and then that Article is brought in a list of citations in cases involving other matters.

Coming back, then, to the question whether they were in any sense waging war or invading, we say the facts do not disclose that in any true and real sense they were acting in the theater of operations or that the action of the President was justified as a military action.

MR. JUSTICE REED: If they came within the theater of war for the purpose of committing sabotage-

COLONEL ROYALL: No, sir; we would not concede so unless you overruled Ex Parle Milligan.

We would not say so if the civil courts were functioning in the area.

MR. JUSTICE REED: Even though it was a theater of war?

MR. CHIEF JUSTICE STONE: Was there a theater of war in the case of Ex Parle Milligan?

COLONEL ROYALL: No, there was not; but I think the principle of that case-

MR. JUSTICE REED: So, even if it was a theater of war, the purpose of sabotage is distinct from-

COLONEL ROYALL: Perhaps I did not get your question clearly.

If they were in the theater of war and were at that time committing some act?

MR. JUSTICE REED: If they were in a theater of war and had as a project or purpose the committing of an act of sabotage.

COLONEL ROYALL: If the purpose was to commit an act of sabotage outside a theater of war, I would say no.

MR. JUSTICE REED: What if it were in the theater of war?

COLONEL ROYALL: Then, of course, I think there would be authority for a military commission, if we assume that it came within the charge of spying or within the 81st Article of War.

MR. JUSTICE REED: I eliminate the spying, but put in the sabotage.

COLONEL ROYALL: No, I do not think that sabotage is covered by any enactment.

I am coming to the laws of war.

The question that would be the determining question there would be whether the laws of war cover that.

MR. JUSTICE REED: You are not taking the laws of war into consideration in what you are saying?

COLONEL ROYALL: Yes, I am taking those into consideration.

I am going to discuss those in a moment, but I do not think that they cover the facts that you state or cover the facts of this case, either.

Now, it is indicated to me by the President’s Proclamation that apparently the Executive had the thought that it required some action to make these men subject to a military commission, because he not only appointed a commission; he issued a Proclamation that they had to be tried by a commission.

If he had that right without a Proclamation, it seems hardly appropriate that he should have added it in this Proclamation.

It is evidence that that Proclamation was ex post facto, if that term can be applied to a presidential proclamation.

It was applied after the men were apprehended, and most of them were apprehended in the interior of the country.

There is one other fact that I am going to discuss, and that is the matte r of spying.

I am going to discuss spying, Article 81, which was not discussed yesterday to any degree, and the provisions of the laws of war, which were gone into in some detail by the Attorney General.

The definition of “spying” is contained on page 157 of the Court Martial Manual, and that accords with the definition in the Rules of Land Warfare, I think, in all essential particulars.

I just give you that additional reference as a matter of convenience.

It requires an intent to communicate military information to the enemy.

This record does not disclose, we say, any intent to communicate that.

MR. JUSTICE BLACK: Do the charges say that there was an intent?

COLONEL ROYALL: They do.

MR. JUSTICE BLACK: So if jurisdiction be judged by the charges themselves, you would say that it shows that they were spying within that definition?

COLONEL ROYALL: You may recall an answer that was made to that yesterday.

I did say that the charges were defective because they failed to allege that they had endeavored to obtain any information.

MR. JUSTICE BLACK: But for that exception it would come within the definition?

COLONEL ROYALL: That is correct, but there is no evidence, except in the case of one petitioner, the petitioner Kerling, of any intention to communicate any fact to the enemy.

He had an address in Portugal, which may leave the inference that he wanted to communicate.

None of the others did.

All of the evidence shows that none of the others did.

He was the leader.

They did not know he had it.

They had never been advised he had it.

They had a means of communicating between themselves as to where they were located.

The charge grasps that fact and says, “for the purpose of communicating with each other and with the German Reich,” but we do not think that, in any true or proper sense, that is spying.

As far as the other petitioners are concerned, that is the only evidence of any kind of any intent to communicate information to the enemy.

Furthermore, there is not the slightest evidence that they endeavored to obtain information as the definition requires, and that is a defect both in the proof and in the charge itself; and, of course, the answer here, as to all these charges, is that they were not in the zone of operations.

Under Article 81 you must show an effort to relieve the enemy.

They seek to supply that by saying the possible use of explosives is relieving the enemy.

I do not believe “relieving the enemy” is used in that sense.

I find no decision that seems to indicate that that was the purpose.

We think that is an unreal meaning, and without that meaning that charge is totally lacking in proof of an essential element.

Now, referring to the Rules of Land Warfare, they read to you today the definition of “armed prowlers.

” In the first place, they were not armed.

It merely says they are not entitled to be treated as prisoners of war, which is a far cry from saying that they could be tried for that offense.

MR. JUSTICE REED: Are you going to discuss unauthorized belligerents?

COLONEL ROYALL: Men and bodies of men, who, without being lawful belligerents as defined in paragraph 9, nevertheless commit hostile acts of any kind, are not entitled to the privileges of combatants.

The whole question turns there on the question of hostile acts.

Frankly, I think our argument on that would be considerably weaker than it would on any other point.

I would not be frank to the Court if I did not say that there was some reasonable contention that landing with explosives might constitute a hostile act.

However, as to the laws of war, we do not concede that there is any such crime as the laws of war, as we argued yesterday.

We do not concede that Congress has made it an offense and that anybody but Congress can make it an offense.

We do not concede in our relations with Germany that The Hague tribunal is binding.

We do not concede that anyone can create an offense in the absence of express Congressional enactment.

The Constitution requires that.

MR. JUSTICE ROBERTS: What do the Articles of War mean when they refer to the Law of War?

COLONEL ROYALL: The Articles of War refer to them, but they do not explicitly provide that they should be offenses.

The language of the 15th Article of War is the strongest provision to that end, and it says this: The provisions of these Articles and so forth shall not be construed as depriving military commissions.

of concurrent jurisdiction in respect to offenders or offenses that by statute or by the Law of War be triable by such military commissions.

Now, we do not believe an inferential inference of that kind can create a criminal offense, and that is the most explicit statutory pro vision that we find.

MR. JUSTICE ROBERTS: It says that a commission may find an offense against the Law of War.

It does not say what the Law of War is.

COLONEL ROYALL: But that would have to mean if it were a punishable offense.

MR. JUSTICE ROBERTS: A Law of War.

COLONEL ROYALL: There are some offenses under the Law of War-

MR. JUSTICE ROBERTS: I thought you said you did not admit that there were any.

COLONEL ROYALL: -

MR. JUSTICE REED: What would you say of an enemy saboteur who was in the field or in the area of battle, behind the lines, who destroyed a bridge?

Would he have to be tried by the civil courts?

COLONEL ROYALL: If he actually destroyed a bridge as a part of military operations he would probably come within Article 81.

MR. JUSTICE BYRNES: Suppose that had not been defined as a theater of operations.

COLONEL ROYALL: Well, then he would be violating the express Congressional statute against sabotage, which is punishable by thirty years imprisonment.

MR. JUSTICE BYRNES: He would have a right to trial by jury?

COLONEL ROYALL: He would have a right to trial by jury.

MR. JUSTICE FRANKFURTER: Nothing that is done outside of what you call the zone of operations, except by men in our own armed forces, is triable by military tribunals?

That is your position?

COLONEL ROYALL: That is our position, because the Constitution says “land and naval forces,” and you cannot go beyond it by any Congressional enactment.

MR. JUSTICE JACKSON: Where is this war if it is not along the Atlantic Seaboard?

COLONEL ROYALL: I have heard it is across the water.

MR. JUSTICE JACKSON: Your position, then, is that this side of the Atlantic, where all these ships have been sunk, is not a theater of operations?

COLONEL ROYALL: The coast is not a theater of operations.

MR. JUSTICE BYRNES: If a person should invade territory which has not been declared to be a theater of operations, your contention is it would not apply?

COLONEL ROYALL: No.

I think I admitted yesterday, and I do not see how we can deny it, that an actual combat occurring in a particular place, no matter what anyone had proclaimed or defined it to be, would make it a theater of operations.

MR. JUSTICE BYRNES: Take the case of the landing of war vessels or the approach of war vessels and sending marines ashore, for example.

Notwithstanding the fact that the Atlantic Seaboard has not been declared to be a theater of operations, you would say that that would not apply?

COLONEL ROYALL: It would depend on the purpose for which they were sent ashore.

If they were sent as these men were, merely with explosives, which was not any more than the means by which a crime could be committed, it would not make it a theater of operations.

MR. JUSTICE BYRNES: Suppose they were armed with guns, with which harm could be done.

What is the difference?

COLONEL ROYALL: The difference is that if they were armed with guns and had an immediate ability to inflict injury on someone or to engage in combat, that would be one thing, but gathering the supplies by which they might do so in the future would not make it a theater of active operations.

MR. JUSTICE BYRNES: Gathering the supplies does not mean that they would have to wait for the future.

COLONEL ROYALL: They could not have done anything anywhere near the time when they landed because it required preparation, time, and everything else, before they could be used.

They had to be assembled.

That was described in some detail.

MR. JUSTICE BLACK: As I gathered your answer, your contention would rest on the distinction whether they intended to destroy cargo or destroy human beings?

COLONEL ROYALL: No, that is not the distinction.

If they were to destroy property of military operations in the sense of an engagement, or a military engagement, that would be one thing; but mere sabotage is not a military operation, as we contend.

MR. JUSTICE REED: Then it would not come under Article 81?

COLONEL ROYALL: I say, if they invaded the coast with a view to using those explosives immediately in connection with a military campaign or operation, I think it would.

Of course, Article 81 is broad enough by its language to cover a very wide range, but it must be construed in connection with the constitutional provisions.

MR. JUSTICE BLACK: I still do not quite get your distinction there.

What about the planes that fly over foreign countries and drop bombs and destroy property far removed from the scene of battle?

COLONEL ROYALL: If it was a military plane, that is generally accepted as a means of fighting or of combat.

MR. JUSTICE BLACK: A submarine is, too.

COLONEL ROYALL: A submarine is, but these submarines in this case did not do anything but transport.

MR. JUSTICE BLACK: But all the plane does is transport a bomb.

COLONEL ROYALL: Yes, but the submarines just transported men.

A plane would be an instrument by which bombs immediately would be put into operation.

The submarine transported men so that in the future they could put something into operation.

MR. JUSTICE BLACK: Your distinction is one of time?

COLONEL ROYALL: Well, there has got to be a line drawn somewhere on everything, and the question is this: If you take the theory that everything that was done that might aid the enemy makes it a theater of operations, you reduce the thing to an absurdity.

If that were true, a strike in a war plant could be tried by a military commission sitting in judgment over the strikers, if there was any pretense that they did it in violation of any law with any ulterior intent.

MR. JUSTICE JACKSON: You are leaving out the very vital fact in your assuption of the strike that these men came from Germany and came on a submarine, after having gone to a school of sabotage.

You are comparing two things that are not at all comparable, are you not?

COLONEL ROYALL: I did not make any comparison, may it please Mr. Justice Jackson.

MR. JUSTICE JACKSON: You said they would both be tried under the same-

COLONEL ROYALL: No, sir.

I said that unless you draw the line somewhere-

MR. JUSTICE JACKSON: It might be drawn between the two things?

COLONEL ROYALL: Of course, it can be drawn between two places.

I am not saying they are the same.

There is no contention in that regard.

The question arose: Where would you draw the line?

Mr. Justice Black raised the question.

I said I would draw it at a place between the airplane and the men who landed to commit sabotage.

It has got to be drawn somewhere.

MR. JUSTICE FRANKFURTER: And you draw the line as you indicated because you say, by following your argument, that this is essentially a procedural problem, namely, what agency, what tribunal, and under what safeguards a charge of guilty should be determined; and you say that there are specific provisions in our Constitution, as well as implications from our form of government which assure the ordinary criminal trial except as to action immediately taking place in active war areas where there is shooting going on or by agencies that themselves bring the shooting to the non-

Is that about a fair statement?

COLONEL ROYALL: That is substantially what our contention is, and we say this in support of that, and I come to the Milligan case.

That is exactly what the Milligan case holds, as we contend.

In the Milligan case the charges were-

MR. JUSTICE REED: Before you reach that, would you say a saboteur who was about to light a fuse behind the lines, close enough to be in the theater of war, could be tried by a military commission?

COLONEL ROYALL: I think under Article 81 that would be true.

MR. JUSTICE REED: In the absence of a statute, you do not admit any Law of War that permits the Army to try people who are waging war without uniform, guerilla war behind the lines?

COLONEL ROYALL: I do not, in the absence of a statute, because the Constitution says that Congress shall define and punish such offenders.

MR. CHIEF JUSTICE STONE: So that parachutists landing immediately in the vicinity of our armies, armed and prepared to fight, could not be punished summarily by military tribunals?

COLONEL ROYALL: I think you could say that if it was in the zone of military operations.

MR. CHIEF JUSTICE STONE: Then there is a Law of War, because you do not refer me to any Article of War.

COLONEL ROYALL: Article 81, sir.

MR. CHIEF JUSTICE STONE: Article 81 covers that?

COLONEL ROYALL: Yes, sir.

MR. JUSTICE REED: Why do you say that covers it?

COLONEL ROYALL: Because it says “relieves the enemy.

MR. JUSTICE REED: Do you not relieve the enemy when you do anything to help the enemy?

It says, “with arms, ammunition, supplies, money, or other thing.

COLONEL ROYALL: That is right.

MR. CHIEF JUSTICE STONE: He must be relieved by things, not by acts.

COLONEL ROYALL: Yes, sir.

Well, sir, I suppose if a man came down armed, he would be relieving by things and acts, if he acted.

If he did not, he would be relieving by things.

MR. CHIEF JUSTICE STONE: He would not be giving arms to the enemy.

COLONEL ROYALL: It does not say “give them.

” It says “relieve.

” If they were made immediately available for their benefit, I would say it was relieving.

MR. CHIEF JUSTICE STONE: Would blowing up by dynamite be relieving?

COLONEL ROYALL: Yes, but Article 81 would not cover blowing up by dynamite unless it was in the theater of operations, because if Article 81 were so construed it would be unconstitutional.

That is our argument.

Article 81 must be construed in line with the constitutional provisions.

MR. JUSTICE REED: Then, in the area of operations, neither Article 81 nor sabotage, to be heard by a military commission, would be constitutional?

COLONEL ROYALL: Well, nothing in violation of Articles 81 or 82.

MR. JUSTICE REED: Or of the Law of War?

COLONEL ROYALL: No, sir.

I say there is no Law of War in absence of a statute.

MR. CHIEF JUSTICE STONE: How can there be one with a statute, if the Constitution prohibits such a law?

COLONEL ROYALL: The Constitution does not prohibit a statute which creates a Law of War in the zone of military operations.

MR. CHIEF JUSTICE STONE: The Constitution does not say anything about zone of war.

COLONEL ROYALL: No, sir, but it says that writs of habeas corpus and the other constitutional guarantees can be disposed with only in connection with the land and naval forces, and we say that that does not mean anything that affects the land and naval forces, but merely those that affect it directly in the zone of operations.

It does not apply to the labor strikes, although it may affect the land and naval forces.

MR. JUSTICE BLACK: Do I understand, to get your position clear, that a civilian cannot be tried at all in what you say is a zone of operations?

COLONEL ROYALL: I think he can.

MR. JUSTICE BLACK: By a military commission?

COLONEL ROYALL: If he is in the zone of operations.

MR. JUSTICE BLACK: Suppose he is not in the zone of operations.

He is a civilian.

Does your position rest on the ground that he cannot be tried before a military commission for any offense whatever?

COLONEL ROYALL: It is not the place of trial-

MR. JUSTICE BLACK: Suppose civilians deliberately blocked Army troops in a place where there was no zone of operations.

COLONEL ROYALL: I do not believe they would be triable.

MR. JUSTICE BLACK: Your position is that they would have to be tried by the civil courts?

COLONEL ROYALL: That again raises another element, and I might want to revise that, because there might be more than one way of acting in connection with the land and naval forces.

If you directly blocked one of the land or naval forces, that would be approaching it from a little different angle.

MR. JUSTICE BLACK: That has been recognized traditionally as a military offense, even if committed by civilians.

COLONEL ROYALL: I think I would have to revise my opinion, because that would be operating directly on the land and naval forces themselves, and therefore the area would not be material there.

MR. JUSTICE BLACK: So that there are certain offenses, even with the position you take, that can be committed by civilians, even though not in the zone of operations, and can be tried as a military operation?

COLONEL ROYALL: Yes, sir, I am sure of that.

MR. JUSTICE BLACK: Why could not spying be one of those?

That is the question I raise.

COLONEL ROYALL: I do not think that it could.

Spying would have to be spying on some military emplacement or fortification.

MR. JUSTICE BLACK: Is there any offense of any kind in connection with the military which has a deeper root and a more ancient history than spying?

COLONEL ROYALL: No, sir, but now there is a third element.

This “land and naval forces” has several meanings.

In the first place, the primary meaning is the regulation of the forces themselves, which has not got any connection with where they are at all.

Another meaning is doing something directly to the forces, like around a post.

Some civilian might commit some offense around a post directly on and concerned with the military forces.

That would be triable by a military tribunal.

He might spy around the military emplacements, and be tried by military tribunal.

All three of those must be analyzed, with some slight difference; but where he does not do anything directly to the military or naval forces, but does something merely that may affect the conduct of the war, then he has got to do it in the theater of military operations.

MR. JUSTICE BLACK: Am I wrong in my recollection?

Spying very generally refers to activities throughout a country where men get information which might be valuable, by working for certain industries, and things of that kind, and do it secretly?

COLONEL ROYALL: I do not think that is spying.

I think that is espionage.

MR. JUSTICE BLACK: You do not think that is spying?

COLONEL ROYALL: I do not think that is spying.

The term “spying” has been used rather loosely, both colloquially and in some of the statutes.

There is military spying, the one that is punishable by a mandatory death sentence, and espionage, which is sometimes called spying, and which is what you have in mind; that is, reporting on industries, reporting on the resources of a country; and there are varying degrees of that.

Most of them are punishable by a maximum sentence of thirty years.

MR. JUSTICE BLACK: That is, acting in one country to get information for another country which either is or might be an enemy, to reveal information which should not be revealed?

COLONEL ROYALL: That is espionage.

MR. JUSTICE BLACK: Is not a man who engages in that secretly generally known under the military law as a spy?

COLONEL ROYALL: I do not think so, sir, unless it has some connection with a military emplacement or military establishment.

MR. JUSTICE BLACK: It might have something to do with military information to be given to the military forces of another nation.

COLONEL ROYALL: I do not think that would be sufficient, because anything that we have or do-

MR. JUSTICE ROBERTS: What is your authority for distinguishing espionage from spying?

COLONEL ROYALL: Well, we have not cited many of them in the brief, but there is considerable authority on that.

MR. JUSTICE ROBERTS: I have Webster’s Dictionary before me, and it says, “Espionage.

To spy; the process of spying.

COLONEL ROYALL: Well, Webster’s Dictionary probably uses it in the sense that the man on the street uses it and not in the sense that the military courts use it.

MR. JUSTICE REED: I have the Court Martial Manual before me.

The principal characteristic of this offense is a clandestine dissimilation of the true object sought, which object is an endeavor to obtain information with the intention of communicating it to the hostile party.

COLONEL ROYALL: Yes, sir; that is part of the definition.

I do not think that militates against our position at all.

I still think that there are well defined differences between espionage and spying.

Espionage is the crime of giving information which might be of military value.

MR. JUSTICE BLACK: Colonel Royall, I would like to ask you one other question.

COLONEL ROYALL: Yes, sir.

MR. JUSTICE BLACK: Let us take this case as though you had filed this petition for a writ before any evidence was offered and we had nothing but the charges.

As I understand it, it is your position that the charge does embrace being a spy; that is, with the one exception?

COLONEL ROYALL: With one exception, yes, sir.

It leaves out endeavoring to obtain information.

MR. JUSTICE BLACK: What is your position as to why that does not give the Commission jurisdiction, a jurisdiction which, once having fastened on to the case, carries through, so that the Commission itself can, without judicial review, finally determine the guilt or innocence of the accused over which it has jurisdiction?

COLONEL ROYALL: Of course, one qualification is the one you stated-

It has not charged that.

MR. JUSTICE BLACK: I understand that.

COLONEL ROYALL: The other one is this, sir.

I think that question does not arise here.

I am not prepared to say whether that will be correct or not.

It does not arise here, because the evidence is before you, and there is nothing to show the other elements.

MR. JUSTICE BLACK: But do we have any right to do anything except pass on jurisdiction?

COLONEL ROYALL: Yes, sir, I think you would, sir.

I think if the case has been concluded and the evidence has been concluded-

MR. JUSTICE ROBERTS: Have not the authorities said over and over again that we cannot revise the judgments of military commissions and that we cannot examine the errors that they have committed?

COLONEL ROYALL: That is entirely correct, but if a civilian was picked up on the street and tried by a military tribunal and the trial was concluded, and he was tried as a soldiers, and there was not a syllable of evidence that he had any connection With the military forces, I would say it had no jurisdiction and that the Court could inquire that far into the facts.

MRS. JUSTICE BLACK: Have there not been enough cases that say that if the charge shows it, it has jurisdiction?

We realize that under the Constitution military commissions have jurisdiction, and the courts must then act on the assumption that the military commissions had done their duty under the Constitution, and the Court has no right to consider the weight of evidence or even whether there was any evidence at all?

COLONEL ROYALL: No, sir, I do not think that is so where there is no evidence to sustain the charge.

MR. JUSTICE BLACK: Is there any case that you can refer to this Court where the Court has looked into the evidence to determine what you say?

COLONEL ROYALL: As to jurisdiction?

MR. JUSTICE BLACK: No.

It gets down to guilt or innocence.

COLONEL ROYALL: No, sir, I do not think so.

MR. JUSTICE BLACK: Of course, in a case where a man is accused of murder, there may not have been a murder committed by him.

COLONEL ROYALL: I do not think that that is analogous, for this reason.

Courts of general jurisdiction have jurisdiction to try all offenses committed in the realm.

This is a special kind of jurisdiction.

MR. JUSTICE BLACK: The one you say the Constitution grants in certain areas?

COLONEL ROYALL: Yes, grants in certain cases.

But it is an exception to the rule, and whether or not you could have inquired into it when the charges alone were brought does not arise here.

All the evidence is in.

It has been stipulated that that is available.

MR. JUSTICE BLACK: Does that change our situation?

What we pass on is jurisdiction.

That is not determined by whether or not the Court makes a mistake in determining the proof of the evidence.

COLONEL ROYALL: No, sir.

I realize that you cannot try it originally, but I say that in this case, where there is no evidence of facts essential to confer jurisdiction on a special kind of tribunal, you cannot take jurisdiction; that it is a jurisdictional fact which you must determine.

The only other thing that I want to discuss is the Milligan case, briefly.

This is on the question of spying.

Congress has two separate statutes, one on espionage and an entirely separate statute on spying, which is a clear Congressional declaration, so to speak, which is borne out by texts that they are not the same thing.

MR. JUSTICE BLACK: Do you cite those in your brief?

COLONEL ROYALL: We cite those in our brief.

I do not believe we cite the spy statute.

That is 1343.

MR. JUSTICE BLACK: You do not set them out?

COLONEL ROYALL: I do not believe we do, sir.

This brief was finished in the morning.

MR. JUSTICE BLACK: I wanted to send for it if you could refer to it in the United States Code.

COLONEL ROYALL: Section 1343 is the spying statute, Title 50.

MR. JUSTICE BLACK: That is the same as Article 82, is it not?

COLONEL ROYALL: The language is identical.

We referred to the espionage statute.

I will find it in a minute.

Sections 32 to 43, Title 50, of the U.S..

Code are on sabotage.

Sections 101 to 106 are on espionage.

MR. JUSTICE BLACK: Of what title?

COLONEL ROYALL: Of Title 50.

I may have them backwards.

They are cited in there, but we did not set them out.

Before I conclude-

I have been trying to do that.

Someone asked if they charged anything about the Law of War.

Joining and aiding, at different times between October 1863 and August 1864, a secret society known as the Order of American Knights or Sons of Liberty, for the purpose of overthrowing the Government and duly constituted authorities of the United States, holding communication with the enemy conspiring to seize munitions of war stored in the arsenals, to liberate prisoners of war, resisting the draft, at a period of war and armed rebellion against the authority of the United States, at or near Indianapolis, within the military lines of the Army of the United States and the theater of military operations, and which had been and was constantly threatened to be invaded by the enemy.

Now, those are the charges in the Milligan case.

In the Milligan case the entire Court held that a military commission could not try the case.

Five Justices held that that was true because Congress neither did nor could provide for that trial.

Four Justices held that it was true because Congress could but did not provide for the trial.

MR. CHIEF JUSTICE STONE: Did not the majority say that; these men should not have been ‘tried by that kind of tribunal in the particular circumstances of the case?

COLONEL ROYALL: The minority so stated.

The majority said that Congress could not make a provision for them.

MR. CHIEF JUSTICE STONE: Did the majority say it did not?

COLONEL ROYALL: It said both.

All of them said it had not so provided, and five of them said it could not provide.

MR. CHIEF JUSTICE STONE: Did not the majority go a little further than that and say that under the Constitution they were entitled to be discharged?

COLONEL ROYALL: Oh, yes, sir; all of them said they were entitled to be discharged.

MR. CHIEF JUSTICE STONE: By virtue of the Constitution?

COLONEL ROYALL: By virtue of the Constitution, but five of them said that Congress could not have done otherwise.

Now, I am not going to read very much of it.

It is a very long case, as you know.

Here is what the majority said.

I read from page 57 of my brief: Every trial involves the exercise of judicial power; and from what source did the military commission that tried them derive their authority?

Certainly no part of the judicial power of this country was conferred on them, because the Constitution expressly vests it in ‘one Supreme Court and such inferior courts as the Congress may from time to time ordain and establish.

MR. CHIEF JUSTICE STONE: Is trial by a military commission a part of the judicial power?

COLONEL ROYALL: Well, sir, it is ah exception to the judicial power.

MR. CHIEF JUSTICE STONE: It derives its force, then, not from a judicial act?

COLONEL ROYALL: No, sir, I think it derives its force from the “land and naval forces” provision of the Constitution.

And it is not pretended that the commission was a court ordained and established by Congress.

The minority, which, of course, is a view more favorable to the respondent in this case, went further than at any other time when it said this.

Where peace exists the laws of peace must prevail.

What we do maintain is, that when the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to determine in what states or districts such great and imminent and public danger exists as justifies the authorization of military tribunals for the trial of crimes and offenses against the discipline or security of the Army or against the public safety.

In other words, the minority opinion said that only Congress could determine that question.

Ex Parle Milligan says: The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.

Milligan was a citizen of the United States.

But the provisions of the Constitution upon which the decision was based are not limited to citizens; they apply to citizens and aliens alike.

That we conceive to be the law in this case.

Suggestion was made by the Attorney General in his opening remarks that we are fighting a war here.

We realize that.

We also realize that the Constitution is not made for peace alone, that it is made for war as well as peace.

It is not merely for fair weather.

The real test of its power and authority, the real test of its strength to protect the minority arises only when it has to be construed in times of stress.

Thank you.

MR. CHIEF JUSTICE STONE: The Court stands adjourned until twelve noon tomorrow.