When a group of German saboteurs were caught in New York and Florida in June 1942, planning to blow up hydroelectric plants and other loci of American industrial power but ratted out by two of their fellows in Operation Pastorius, President Franklin D. Roosevelt knew exactly what he was not going to do. "I want one thing clearly understood, Francis," he told his Attorney General, Francis Biddle. "I won't hand them over to any United States marshal armed with a writ of habeas corpus. Understand?" Biddle understood: this was war. There would be no civilian "due process." They would get what was coming to them.
The men had buried their German uniforms on the beaches, and were wearing civilian clothes and carrying a lot of greenbacks when apprehended. Since they had not actually done anything, under civilian law, smart lawyers could get them off with just a couple of years in prison for violating immigration laws, spitting on the sidewalk, and picking their feet in Poughkeepsie. Further, there was a Supreme Court precedent from the Civil War era to deal with, Ex Parte Milligan (1866), in which a Confederate sympathizer and propagandist in Indiana had had his conspiracy conviction by a military tribunal overturned on the grounds that federal courts were still operating at the time of his arrest, and that's where he should have been tried.
From Roosevelt's point of view, however, habeas was a luxury the country couldn't afford; Lincoln had felt the same way during his time as commander-in-chief. Pearl Harbor was, after all, only six months in the rear-view mirror and while the Battle of Midway had just sent the Japanese carrier fleet to the bottom, the Brits had gone tits up at Dunkirk in May 1940 and the Soviets were continuing to reel from Operation Barbarossa, which launched in June 1941. Shortly after the capture of the Germans, FDR issued Executive Proclamation 2561, which created a military tribunal to try their cases. They were thus charged not under civil law but American laws of war dating back to 1775 -- the ones that allowed combatants to summarily execute spies and saboteurs. (During the Revolution, both the American Nathan Hale and the British Major John André were hanged as spies.)
Instead, the operatives were given a military tribunal, convicted, and six of the eight (all had lived in the U.S. and two were American citizens) were sent to the electric chair in August; the two informers were given life or extended sentences in exchange for divulging the plot. Because in those days the Supreme Court actually did read the election returns, Roosevelt's solution had been pre-emptively sanctioned by the Court in Ex Parte Quirin (July 1942):
In a unanimous opinion authored by Chief Justice Harlan Fisk Stone, the Court concluded that the conspirators, as spies without uniform whose purpose was sabotage, violated the law of war and were therefore unlawful enemy combatants. Noting that Congress had, under the Articles of War, authorized trial by military commission for unlawful enemy combatants, the Court therefore determined that the President had not exceeded his power. Furthermore, the Court asserted that the Fifth and Sixth Amendments "did not enlarge the right to jury trial" beyond those cases where it was understood by the framers to have been appropriate.
What a difference fourscore and three years make. Although the Islamic ummah declared war on the United States of America in 1998, and although President Trump has designated Mexican and South American narco gangs such as Tren de Aragua as terrorists under the Alien Enemies Act of 1798, an appalling number of American lawyers -- including some ostensibly on the right -- appear not to have gotten the message, and have dragged him into federal court over and over again over the phantom issue of alien "rights." Most recently, the Supreme Court under the wretched John Roberts, ignored its own precious precedents and issued a midnight order temporarily blocking Trump from deporting criminal aliens slated for deportation until further notice while "due process" continues duly.
In this way, the American Left is continuing its "resistance" to the lawfully elected government of the United States, relying on the solidarity of those in the legal profession who make a handsome living pettifogging at public expense to defend "due process," aka the Full Employment for Lawyers Forever Act. That the Roberts Court has brought us to this point by its own pusillanimity -- the two truly conservative Justices, Alito and Thomas, excoriated the order in their dissent -- is beside the point. The battle lines have now been drawn, with the vacillating Chief Justice throwing in with the Court's feminine bloc to tell the president how to conduct foreign policy in a war that they, like the Democrats, have decided to pretend does not exist.
What would Caesar do?
It's easy to know where to place the blame: on George W. Bush, the man who appointed Roberts, who fumbled the Battle of 9/11 so badly that the country is still paying the price for his lack of resolve, who gave us Homeland Security, the Director of National Intelligence, and the TSA. One might also go back to the first Bush presidency, that of George H.W. Bush, who bungled the end of the Cold War in 1989-1991 and thus created the conditions for the international shambles we are living through today. As I write in the final chapter of A Rage to Conquer:
We can date the decline of the United States as an international power to the first Bush presidency, and that decline’s emphatic punctuation with the presidency of his son, George W. Bush. “Poppy,” as the elder was called, essentially ceded control of the events that followed the end of the Soviet Union and the liberation of Eastern Europe—the cornerstone of American foreign policy for nearly half a century—to other players: to Boris Yeltsin in Russia, Helmut Kohl in Germany, Vaclav Havel in Czechoslovakia, and, critically, to the Hungarian-born George (Schwartz) Soros, who invested a great deal of money in the rebuilding of the East Bloc and was widely hailed at the time as a moneyed capitalist savior from the wreckage of communism.
And then 9/11 happened:
In fact, almost everything the administration did in its panicked reaction to September 11 was wrong. It instantly declared—to the hosannas of the media and the utter disbelief of the public—that the religion of Islam had nothing to do with the attacks, and that the word “Islam” meant “peace” rather than “submission.” Harmoniously, King Fahd of Saudi Arabia called on America to “protect the innocents” while Prince Bandar had the chutzpah to quote one of the students saying that until that moment “he never really appreciated why the Japanese wanted a memorial or an apology for their treatment in World War II.”
Incomprehensibly, with many of the dead not even identified yet, the Saudis were considered the real victims as they returned to their plush lives in Riyadh, London, Paris, and elsewhere, miniskirts and Victoria’s Secret underwear under their women’s burkas and hatred in their hearts. Instead, Bush and Cheney punished the American people.
Came the lawyers, waving around their court orders and written arguments like Dr. Bartolo at the end of Act II of Mozart's The Marriage of Figaro, demanding the triumph of legalism over common sense and ordered liberty. We are a country of laws, not men, they cried-- but what they mean is a country of lawyers, not citizens in whom all final political authority rests. And so the Bushes decided to fight foreign threats with JAGs (judge advocate generals: lawyers) instead of generals, and the "rights" of foreign nations hostile to the nation and its people now supersede the those of real Americans, whose tax dollars pay their salaries. Nice work if you can get it. But Heaven forfend we should actually name our enemy. God forbid we should actually declare war, and finish it.
Much legalistic pettifogging was expended on the fact that al-Qaeda was a “non-state actor,” and hence there was no legitimate entity for the Americans against which to strike back, other than an amorphous “terror.” Never mind the fact that the plot was hatched by a Saudi national and carried out in large part by Saudi nationals, which in any other time and place would be considered a prima facie casus belli. The overrepresentation of lawyers in every facet of American life has never been such a danger to the Republic, and while it may seem “humane” to have every battlefield action subject to second-guessing and, occasionally, a court martial or even civilian criminal charges, it defeats the very purpose for which a standing military stands. Besides REMF, the dirtiest word in a soldier’s vocabulary is JAG.
That was 9/11. Now we're fighting saboteurs and infiltrators from our own hemisphere, here on our home turf, "Maryland men." After Pearl Harbor, FDR went before Congress to declare, "No matter how long it may take us to overcome this premeditated invasion, the American people in their righteous might will win through to absolute victory. I believe that I interpret the will of the Congress and of the people when I assert that we will not only defend ourselves to the uttermost but will make it very certain that this form of treachery shall never again endanger us. With confidence in our armed forces—with the unbounding determination of our people—we will gain the inevitable triumph—so help us God."
Now, instead of the chair, our enemies get the best lawyers your money can buy, and laugh in your face.
Article tags: FDR, John Roberts, Tren de Aragua
