The Spies Who Came In From The Sea

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Only Kerling and Neubauer (although they also doubted that they could have carried the plot through) took the defense of a soldier’s duty. The handsome, bushy-haired Kerling said that for him to have disobeyed orders would have been cowardly, while the burly Neubauer testified, “As a soldier you are not supposed to think; and I did not. I just got the order and I didn’t know what for.”

Colonel Royall knew that however necessary these assertions were, they would never save his clients’ necks. His second line of defense was that even if the defendants could be shown to be guilty of clandestine conduct, that was the extent of their crime. They had not even attempted any spying or violence, much less achieved any. But the last line of defense was Milligan .

Had newsmen been present, they would have depicted the drama between the two men charged with most of the oral presentation, Francis Biddle for the prosecution and Kenneth Royall for the defense. Biddle, eight years the senior, was a tall six feet two, Royall a towering six-five. Each had studied law at Harvard, and each had sharpened his abilities under a titan of jurisprudence—Royall under Felix Frankfurter at college, Biddle as secretary to Associate Justice Oliver Wendell Holmes after graduation. Each had become an eminent attorney, Biddie in Philadelphia, Royall in his native North Carolina. Each in his lifetime would be a cabinet member, Royall slated to become the first secretary of the same army whose executioner’s efforts he was now trying to thwart. And now each was serving the country in a wartime role that brought them into sharp, but always courteous, legal collision.

Royall made it clear at the start that he would challenge the legality of the President’s proclamation and that all his arguments in the military court would not imply any concession that the military was competent to try the prisoners. This course brought an anguish of doubt to his defense colleague, Colonel Dowell. Unlike Royall, Dowell was a Regular Army man, with forty years of service behind him. He could not entirely quell a feeling that it would be insubordination for him to question a proclamation of his commander in chief. While he did not oppose the move, his uncertainty was so strong that he could not actively support it either, which left it up to Royall.

The Supreme Court was in summer adjournment, its members scattered. Royall cleared the way by applying to the district court for leave to file petitions of habeas corpus—a plea immediately refused. He talked with the Attorney General. The next day Royall and Biddle flew together to Chester Springs, Pennsylvania, where Associate Justice Owen J. Roberts was vacationing on his farm with Associate Justice Hugo L. Black as his guest. There, over country cheese and crackers, the two jurists listened at length to the callers. Roberts ended by telephoning Chief Justice Harlan Fiske Stone at Sugar Hill, New Hampshire, where he was spending the summer. The next day the nation learned that the Supreme Court would convene at all speed for the sake of men who were described by some commentators as “saboteurs, bomb-throwers, and killers.” While a few of the justices were within reasonable distance, Justice James Byrnes was in South Carolina, Justice Frankfurter was in Connecticut, Justice Frank Murphy was an Army colonel training in North Carolina, and Justice William Douglas was in Oregon.

To a lawyer, appearing before the Court is equivalent to a pietist meeting the choir of angels. It is never easy, even for one like the Attorney General, who had done it repeatedly. The younger Royall had done so only once before. The two attorneys, though they had expert aid in research, got little sleep as they prepared their opposing presentations. This was the biggest spy case in American history. It was the first time the Court had broken its summer recess in twenty-two years. It would hardly do to present arguments not well founded in law.

Although there were many precedents involved (Biddie cited forty-eight, Royall sixteen), the Milligan ruling was at once the most striking and the one that seemed most promising for the defense. Royall portrayed the analogy to the Court, one of whose members was his old professor Frankfurter. No more so than Milligan’s Indiana, he said, could the beaches of Long Island and Florida be called “zones of military operation.” There was no combat there; there was not even a threatened invasion, much less an actual one. The civil courts were functioning, Royall went on to argue, and they were the proper places to try the prisoners.

But the two days before the Court, the thousands of words spoken by the opposing counsel, and the many questions asked by the justices demonstrated among other things that Milligan was not the man he once had been. The Attorney General declared that the old case no longer applied—that time and technology had wiped out its relevance: “The United States and Nazi Germany are fighting a war to determine which of the two shall survive. This case is … part of the business of war.” The swift total war of 1942 was as different from the static land warfare of 1864 as a Stuka bomber was from a musket. This war was everywhere—on land, in the water and air, and in our factories and civilian morale as well as on the battlefield. The saboteurs, arriving secretly in enemy submarines, had penetrated our defenses, bringing explosives. Like spies of all ages—like Major André and our own Nathan Hale—they had removed their uniforms and come in disguise. The universally accepted law of war was that spies should be tried by military tribunals and executed if guilty.