Lapas attēli
PDF
ePub

Argument for Petitioners.

317 U.S.

The charge of conspiracy can not stand if the other charges fall. Furthermore, 18 U. S. C. 88 deals expressly with the offense of conspiracy, and this charge is not triable by a military commission.

The conduct of the petitioners was nothing more than preparation to commit the crime of sabotage. The objects of sabotage had never been specifically selected and the plan did not contemplate any act of sabotage within a period of three months. These facts are not even sufficient to constitute an attempt to commit sabotage.

The civil courts were functioning both in the localities in which the offenses were charged to have been committed and in the District of Columbia where the alleged offenses were being tried. In these localities there was no martial law and no other circumstances which would justify action by a military tribunal.

The only way in which the petitioners as a practical matter could raise the jurisdictional question was by petition for writ of habeas corpus.

The military commission had no jurisdiction over petitioners. Article of War 2 defines the persons who are subject to military law, and includes members of the armed forces and other designated persons. Military courtsmartial and other military tribunals have no jurisdiction to try any other person for offenses in violation of the Articles of War, except in the cases of Articles 81 and 82. The same is true of any alleged violations of the law of Ex parte Milligan, supra; 31 Ops. Atty. Gen. 356. Civil persons who commit acts in other localities than the zone of active military operations are triable only in the civil courts and under the criminal statutes. While it is true that the territory along the coast was patrolled by the Coast Guard, the patrol was unarmed. It would be a strained use of language to say that this patrol made the beach a military line or part of the zone of active operations.

war.

1

Argument for Petitioners.

Nor is the situation changed by the fact that on the Long Island beach, some distance away, was located a Signal Corps platoon engaged in operating a radio locator station. The evidence shows that this platoon did not patrol the beach and was not engaged in any military offensive or defensive operation at the time the petitioners landed. The whole United States is divided into defense areas or sectors and the orders therefor are substantially similar to those providing for the southern and eastern defense sectors. If the prosecution were correct in its contention that the issuance of orders for these sectors creates a zone of active military operations, then the entire United States is a zone of active military operations, and persons located therein are subject to the jurisdiction of military tribunals. The Florida and Long Island seacoasts were not and are not in any true sense zones of active military operations, but are instead parts of the Zone of the Interior as defined in the Field Service Regulations.

Martial law is a matter of fact and not a matter of proclamation; and a proclamation assuming to declare martial law is invalid unless the facts themselves support it. See Sterling v. Constantin, 287 U. S. 378.

The President's Order and Proclamation did not create a state of martial law in the entire eastern part of the United States. In view of the facts, there was no adequate reason, either of military necessity or otherwise, for depriving any persons in that area of the benefit of constitutional provisions guaranteeing an ordinary and proper trial before a civil court. Ex parte Milligan, supra.

The President had no authority, in absence of statute, to issue the Proclamation. In England, the practice has been to obtain authority of Parliament for similar action. 4 and 5 Geo. V, c. 29; 5 and 6 Geo. V, c. 8; 10 and 11 Geo. V, c. 55; 2 and 3 Geo. VI, (1939) c. 62. Congress alone can suspend the writ of habeas corpus, and then only in cases of rebellion or invasion. Const., Art. I, § 9, cl. 2;

Argument for Petitioners.

317 U.S.

Ex parte Merryman, 17 Fed. Cas. 114; Ex parte Bollman, 4 Cranch 101; McCall v. McDowell, Fed. Cas. No. 8673; Ex parte Benedict, 3 Fed. Cas. No. 1292; Willoughby, Const. L., § 1057.

The Proclamation was issued after the commission of the acts which are charged as crimes and is ex post facto. Congress itself could not have passed valid legislation increasing the penalty for acts already committed. Const., Art. I, § 9, cl. 3; Thompson v. Utah, 170 U. S. 343; Burgess v. Salmon, 97 U. S. 384.

The Proclamation is violative of the Fifth and Sixth Amendments, of Art. III, § 2, cl. 3, and of Art. I, § 9, cl. 2, of the Constitution.

The Order is invalid because it violates express provisions of Article of War 38 respecting rules of evidence; and is inconsistent with provisions of Article 43 requiring concurrence of three-fourths of the Commission's members for conviction or sentence.

Article 70 requires a preliminary hearing like one before a committing magistrate, with liberty of the accused to cross-examine. This is ignored by the Order.

Whereas Article 502 requires action by the Board of Review and the recommendation of the Judge Advocate General before the case is submitted to the President, the Order requires that the Commission transmit the record of the trial, including any judgment or sentence, directly to the President for his action thereon.

The Order has made it impossible to comply with the statutory provisions, by directing the Judge Advocate General (and the Attorney General) to conduct the prosecution, thereby disqualifying the Judge Advocate General and his subordinates from acting as a reviewing authority. The proceedings disclose that the Judge Advocate General has in fact assisted in the conduct of the prosecution.

This is a material violation of the statutory rights afforded accused persons by the Articles of War. The

1

Argument for Respondent.

provisions of Articles 46 and 502 are the methods of appeal by a person tried before a military commission. The Order deprives them of this method of appeal.

A cardinal purpose of Article 38 was to provide a procedure for military commissions, with the proviso that nothing in the procedure shall be "contrary to or inconsistent with" the Articles of War.

The President had no authority to delegate the rulemaking power under Art. 38 to the Commission. In violation of Articles 38 and 18 the petitioners were denied the right to challenge a member of the Commission peremptorily. Confessions of the defendants were improperly admitted against each other.

If it be suggested that these are matters which do not affect the jurisdiction of the Commission or the validity of the proceedings, but are merely questions which may be raised on appeal or review, the answer is that the Order deprived the petitioners of such appeal or review.

Citing Ex parte Milligan, 4 Wall. 2; Sterling v. Constantin, 287 U. S. 378; Caldwell v. Parker, 252 U. S. 376; Kahn v. Anderson, 255 U. S. 1; Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398; Carter v. Carter Coal Co., 298 U. S. 330; 55 Harvard L. Rev. 1295; 31 Ops. A. G. 363.

Attorney General Biddle, with whom Judge Advocate General Myron C. Cramer, Assistant Solicitor General Cox, and Col. Erwin M. Treusch were on the brief, for respondent.

Enemies who invade the country in time of war have no privilege to question their detention by habeas corpus. Halsbury's Laws of England, 2d Ed., Vol. IX, p. 701, par. 1200; p. 710, par. 1212; Blackstone, 21 Ed., Vol. 1, c. 10, p. 372; Sylvester's Case, 7 Mod. 150 (1703); Rex v. Knockaloe Camp Commandant, 87 L. J. K. B. N. S. 43 (1917); Rex v. Schiever, 2 Burr. 765 (1759); Furly v. Newnham, 2 Doug. K. B. 419 (1780); Three Spanish Sailors, 2 W. B.

Argument for Respondent.

317 U.S.

1324 (1779); Rex v. Superintendent of Vine Street Police Station, [1916] 1 K. B. 268; Schaffenius v. Goldberg, [1916] 1 K. B. 284; Rules of Land Warfare, pars. 9, 70, 351, 352, 356.

If prisoners of war are denied the privilege of the writ of habeas corpus, it is inescapable that petitioners are not entitled to it. By removal of their uniforms before their capture, they lost the possible advantages of being prisoners of war. Surely, they did not thus acquire a privilege even prisoners of war do not have.

Whatever privilege may be accorded to such enemies is accorded by sufferance, and may be taken away by the President. Alien enemies-even those lawfully resident within the country-have no privilege of habeas corpus to inquire into the cause of their detention as dangerous persons. Ex parte Graber, 247 F. 882; Minotto v. Bradley, 252 F. 600. See also Ex parte Weber, [1916] 1 K. B. 280, affirmed [1916] 1 A. C. 421; Rex v. Superintendent of Vine Street Police Station, [1916] 1 K. B. 268; Rex v. Knockaloe Camp Commandant, 87 L. J. K. B. N. S. 43; Re Chamryk, 25 Man. L. Rep. 50; Re Beranek, 33 Ont. L. Rep. 139; Re Gottesman, 41 Ont. L. Rep. 547; Gusetu v. Date, 17 Quebec Pr. 95; Act of July 6, 1798, 50 U. S. C. § 21; De Lacey v. United States, 249 F. 625.

The fact is that ordinary constitutional doctrines do not impede the Federal Government in its dealings with enemies. Brown v. United States, 8 Cranch 110, 121– 123; Miller v. United States, 11 Wall. 268; Juragua Iron Co. v. United States, 212 U. S. 297; De Lacey v. United States, 249 F. 625.

The President's power over enemies who enter this country in time of war, as armed invaders intending to commit hostile acts, must be absolute.

In his Proclamation, the President took the action he deemed necessary to deal with persons he and the armed forces under his command reasonably believed to be enemy

« iepriekšējāTurpināt »