Frankfurter and the Nazi Saboteurs

Michal Belknap

War tests soldiers, and sometimes courts and judges too. Although most judicial work has little to do with the business of war making, occasionally, in the midst of a military conflict, a jurist does confront a case spawned by the combat beyond the courtroom. In theory he should decide such a case as he would any other raising similar legal issues. But because he is human, a judge cannot avoid considering how his decision might affect the military struggle, and because judging offers so few chances to contribute anything to a war effort, he may seize upon such litigation as an opportunity to do something for the cause. If the matter before him is a criminal one, the price of judicial patriotism may be reduced security for the rights of the accused. Nothing better illustrated this than "F F's Soliloquy," a document written during World War II by Justice Felix Frankfurter of the United States Supreme Court. Its few pages reveal a hawkish author determined to prevent the reduction of national morale which he feared might result from any decision giving legal and constitutional protection to criminal defendants who were also captured German agents.

The Frankfurter of "F F's Soliloquy" was a judge openly hostile to the accused and manifestly unwilling to afford them procedural safeguards. He cared far more that these enemies be punished quickly than that they be tried fairly The attitudes which this document reflects are a far cry from the "preoccupation with fairness of procedure" which Joseph Lash sees as characteristic of Justice Frankfurter.[1] With respect to most cases Lash's assessment is correct, but not for those touching upon the World War II military effort.

Frankfurter was normally quite concerned about the rights of criminal defendants. If this was not always readily apparent, it was because his notions about the limited authority which the Due Process Clause of the Fourteenth Amendment gave the Supreme Court to reverse state convictions tended to obscure his true position. Thus, in the infamous Willie Francis case, Justice Frankfurter cast the crucial fifth vote which allowed Louisiana to send back to the electric chair a man who, because of an equipment malfunction, had survived its first attempt to execute him. Frankfurter's reason was that unless the conduct involved offended a principle of justice 'rooted in the traditions and conscience of our people,' "this Court must abstain from interference with State action no matter how strong one's personal feeling of revulsion against a State's insistence on its pound of flesh."[2] His stand in this case was a matter of constitutional principle rather than mere callous disregard for the plight of the defendant, as he demonstrated by persuading a Harvard Law School classmate who was practicing law in New Orleans to seek executive clemency for Francis.[3] Frankfurter's views concerning the limited role of the Supreme Court in state criminal cases also explain his willingness to permit the use in them of illegally obtained evidence which, as a strong proponent of the Fourth Amendment, he insisted upon excluding from federal trials.[4]

When not restrained by his conception of the scope of Fourteenth Amendment Due Process, Justice Frankfurter frequently did display the "high and fastidious regard for the administration of criminal justice" which he had acquired early in his career while serving on the staff of Henry L. Stimson, then U. S. Attorney for the Southern District of New York. When reviewing federal rather than state convictions, Frankfurter felt no compulsion to uphold them just because they were constitutional. As far as he was concerned, in exercising its supervisory authority over criminal justice in the lower federal courts, the Supreme Court could establish and maintain standards of procedure and evidence considerably higher than those which would satisfy mere due process.[6] Not only could the Court do so, it should, for "The history of liberty has largely been the history of the observance of procedural safeguards."[7] In cases involving the failure of federal officers to bring arrested suspects promptly before a magistrate, Frankfurter wrote opinions reversing the convictions, and when a majority of his colleagues declined to upset a contempt of Congress verdict against a Communist defendant returned by a Washington jury that included federal employees subject to the government's anti-Communist loyalty-security program, he entered a vigorous dissent.[8] Frankfurter did read narrowly some criminal justice provisions of the Bill of Rights–such as the double jeopardy and self-incrimination clauses of the Fifth Amendment–and he did resist the extension of these provisions beyond what appeared to him to be their historic meaning.[9] But, as Lash says, "Frankfurter's concern with the integrity of the judicial process cannot be over-stressed. . . ."[10]

This concern accounts for his readiness, in the years before he joined the Court, to intervene in controversial cases involving unpopular defendants, many of them political radicals. Frankfurter sought justice for Tom Mooney and published an article and a book branding the trial of Sacco and Vanzetti a judicial lynching. With Harvard's famed civil libertarian, Zechariah Chafee, Jr., he appeared as amicus curiae in a hearing for aliens arrested during the Palmer raids. After convincing the federal district court in Boston that the rights of those prisoners had been trampled upon, Frankfurter and his associate joined with ten other prominent lawyers to publish in the scathing Report on the Illegal Practices of the United States Department of Justice the damning evidence of abuses they had uncovered. Later as a judge, Frankfurter continued to stress the importance of safeguarding the rights of defendants who belonged to unpopular minorities, remarking, in a case involving a member of the Communist Party, "The boast of our criminal procedure is that it protects an accused, so far as legal procedure can, from a bias operating against such a group to which he belongs."[12] "It is a fair summary of history to say," he once observed, "that the safeguards of liberty have frequently been forged in controversies involving not very nice people."[13]

Although Frankfurter's attachment to such views was strong, it was not powerful enough to withstand the winds of war. During the early 1940s he subordinated his concern for fair criminal procedure to a burning desire for successful prosecution of World War II. This is not to say Justice Frankfurter was a jingo. Although a reserve officer who held several important civilian posts in the War and Labor Departments during World War I, he seems to have regarded that conflict as at best a regretable necessity In April 1917 Frankfurter wrote to his future wife, Marion Denman, that when he saw and talked with the Harvard students who were donning military uniforms, "the sense of all the dislocating force of war rushes in on me, the vast tragic irrelevance of it to all that should be life, and I have no patience at all with those who see in a war a great moral purgative."[14] "'But the global conflict of the 1940s awakened different emotions. To Frankfurter, a European-born Jew, Hitlerism seemed particularly menacing. He viewed it as a threat to the American democratic fellowship and to all civilized values.[15] The fight against the Axis was for him "a war to save civilization itself from submergence."[16]

This burning commitment to the crusade against Hitler and his allies affected Frankfurter's judicial decision making. The best known and most controversial product of his heightened wartime patriotism was the majority opinion in Minersville School District v. Gobitis, a case in which the Supreme Court upheld the right of school officials to compel Jehovah's Witnesses children to salute the flag, despite the conflict between that practice and their religious beliefs.[17]This opinion relied heavily upon the rationale of judicial restraint, as did another that Frankfurter wrote accepting the right of the executive, under the war power and a statute operative only during a declared war, to expel a German alien from the country several months after the fighting ended.[18] But more than his conviction that judges should not substitute their policy views for those of the people's elected representatives determined Frankfurter's position in World War II cases. He considered what was at stake in Gobitis "an interest inferior to none in the hierarchy of legal values." Local school officials could make children salute the flag because "National unity is the basis of national security"[19]

A judge who could allow his enthusiasm for a war to carry him to such a conclusion was likely to applaud even more loudly a legal action by a coordinate branch of the national government directed not at infant nonconformists but at actual agents of the Nazi enemy During the summer of 1942 a case arising out of such a prosecution came before Frankfurter and his colleagues. The defendants were eight German agents, all former residents of the United States, who had returned to this country on a sabotage mission. Two of them soon betrayed the others, and the FBI quickly rounded up the entire group. Determined to see these would-be saboteurs executed, President Franklin Roosevelt created a special military commission to try them. But their army lawyers, convinced that under the Supreme Court's 1866 decision in Ex parte Milligan they were entitled to a civilian trial, sought writs of habeus corpus from the Court.[20] Assembling for a dramatic special session on 30-31 July1942, the Court heard oral arguments in the case, then quickly rejected the saboteurs' petitions.[21]

Not until October, however, did it publish an opinion explaining its decision. In the meantime the justices exchanged ideas about how to justify

the ruling they had already made. It was during this period that Frankfurter drafted the fanciful exchange between himself and the saboteurs which he entitled "F F's Soliloquy" In it he expressed views more reflective of his feelings about the war than his normal concern with ensuring procedural fairness for even the most unpopular defendants.

Much of his fictional dialogue with the Nazis concerns the applicability to their case of articles 46 and 50_ of the Articles of War, statutory provisions laying down procedures for review of the proceedings of military commissions. These proved a particularly thorny problem for the Court, as counsel for the saboteurs had a more persuasive argument on this issue than did the government. The order creating the body that tried the German agents rather clearly did not comply with the requirements of these articles. If they applied to the saboteur case, then those six of the eight defendants who were already dead when Frankfurter wrote had been executed illegally For this reason he and his colleagues, in the letters and memoranda which they exchanged, devoted substantial attention to articles 46 and 50_.

Exactly how many of the other justices read Frankfurter's fictional exchange with the saboteurs on this and other issues is not entirely certain. But copies of "F.F.'s Soliloquy" are preserved in both the Hugo Black Papers at the Manuscript Division of the Library of Congress and the Frank Murphy Collection of the Bentley Historical Library at the University of Michigan. Accompanying the Murphy copy is a typed memo which reads: "Brethren: I give this to you with affection and respect. F. F. Apparently then, even if some of them never saw it, Frankfurter at least intended the document below to be read by all of his colleagues.[22]

"F. F's Soliloquy"

After listening as hard as I could to the views expressed by the Chief Justice and Jackson about the Saboteur case problems at the last Conference, and thinking over what they said as intelligently as I could, I could not for the life of me find enough room in the legal differences between them to insert a razor blade. And now comes Jackson's memorandum expressing what he believes to be views other than those contained in the Chief Justice's opinion.[23] I have now studied as hard as I could the printed formulations of their views –and I still can't discover what divides them so far as legal significance is concerned. And so I say to myself that words must be poor and treacherous means of putting out what goes on inside our heads. Being puzzled by what seem to me to be merely verbal differences in expressing intrinsically identic views about the governing legal principles, I thought I would state in my own way what have been my views on the issues in the Saboteur cases ever since my mind came to rest upon them. And perhaps I can do it with least misunderstanding if I put it in the form of a dialogue –a dialogue between the saboteurs and myself as to what I, as a judge, should do in acting upon their claims:

Some of the very best lawyers I know are now in the Solomon Island battle, some are seeing service in Australia, some are sub-chasers in the Atlantic, and some are on the various air fronts. It requires no poet's imagination to think of their reflections if the unanimous result reached by us in these cases should be expressed in opinions which would black out the agreement in result and reveal internecine conflict about the manner of stating that result. I know some of these men, very, very intimately. I think I know what they would deem to be the governing canons of constitutional adjudication in a case like this. And I almost hear their voices were they to read more than a single opinion in this case. They would say something like this but in language hardly becoming a judge's tongue: "What in hell do you fellows think you are doing? Haven't we got enough of a job trying to lick the Japs and Nazis without having you fellows on the Supreme Court dissipate the thoughts and feelings and energies of the folks at home by stirring up a nice row as to who has what power when all of you are agreed that the President had the power to establish this Commission and that the procedure under the Articles of War for courts martial and military commission doesn't apply to this case. Haven't you got any more sense than to get people by the ear on one of the favorite American pastimes–abstract constitutional discussions. Do we have to have another Lincoln- Taney row when everybody is agreed and in this particular case the constitutional questions aren't reached. Just relax and don't be too engrossed in your own interest in verbalistic conflicts because the inroads on energy and national unity that such conflict inevitably produce, is a pastime we had better postpone until peacetime."

Endnotes

1. Joseph P. Lash, From the Diaries of Felix Frankfurter (New York: W. W. Norton, 1975), p. 81.
2. Francis v. Resweber, 329 U.S. 459, 469-70 cases were determined by his alleged devotion to such restraintist principles has been questioned by both Joel Grossman and Harold J. Spaeth. But the latter deals only with cases involving labor unions and business regulation, while the former shows that Frankfurter did decided some civil liberties cases on this basis. See Grossman, "Role Playing and the Analysis of Judicial Behavior: The Case of Mr. Justice Frankfurter" Journal of Public Law 11 (1962): 285-309 and Spaeth, "The Judicial Restraint of Mr. Justice Frankfurter--Myth or Reality," Midwest Journal of Political Science 8 (February 1964): 22-38.
3. Liva Baker, Felix Frankfurter (New York: Coward-McCann, 1969), pp. 283-86.
4. Helen Shirley Thomas, Felix Frankfurter: Scholar on the Bench (Baltimore: The Johns Hopkins Press, 1960), p. 164.
5. Ibid., p. 8.
6. McNabb v. United States,318 U.S. 332, 340-41 (1943).
7. Ibid., at 347.
8. McNabb v. United States, 318 U.S. 332 (1943);Mallory v. United States, 354 U.S. 449 (1957); Dennis v. United States, 339 U.S. 162 (1950).
9. Thomas, Felix Frankfurter, pp. 139-41.
10. Lash, From the Diaries, p. 80.
11. Ibid.
12. Dennis v. United States, 339 U.S. at 185.
13. United States v. Rabinowitz, 339 U.S. 56, 69 (1950).
14. Quoted in Lash, From the Diaries, p. 20.
15. Ibid., p. 68.
16. "Address by Associate Justice Frankfurter at the Inauguration of Dr. Harry N. Wright, Sixth President of the City College of New York on Wednesday September 30, 1942." Box 198, Felix Frankfurter MSS, Manuscript Division, Library of Congress.
17. 310 U.S. 586 (1940).
18. Ludecke v. Watkins, 335 U.S. 160 (1948).
19. Minersville School Dist. v. Gobitis, 310 U.S. at 595.
20. For Roosevelt' views see Memorandum for the Attorney General, Secret and Confidential, June 30, 1942, Box 72, FDR Papers, Franklin D. Roosevelt Presidential Library, Hyde Park, New York. For the arguments of defense counsel see Brief in Support of Petitions for Writ of Habeus Corpus, Burger v. Cox, 317 U.S. 1 (1942).
21. Ex Parte Quirin, 317 U.S. 1 (1942).
22. The Black Papers copy is located in Box 269, The Murphy Collection one may be found in Box 67., folder 5.
23. Harlan Fiske Stone was Chief Justice at the time. The Jackson referred to is Associate Justice Robert Jackson.
24. What is paraphrased here is the "open court" rule of Ex parte Milligan, upon which the saboteurs grounded their constitutional argument.
25. The saboteurs entered the United States in military attire, then changed into civilian clothes on the beach. So long as they remained in uniform they were entitled to be treated as prisoners of war and could legally be neither tried not executed.
26. That Congress had specifically authorized this procedure was not at all clear. Indeed, whether or not it had done so was one of the issues debted in oral argument before the Court.
27. Chief Justice Stone, who wrote the opinion of the Court, did not consider the "material" supporting Frankfurter's interpretation of Article 46 conclusive or even very persuasive. Although he made use of his colleague's construction of that provision, he observed of this portion of his draft opinion, "About all I can say for what I have done is that I think it will present the Court was all tenable and pseudo tenable bases for decision." (Stone to Frankfurter, September 16, 1942, Box 69, Harlan Fiske Stone MSS, Manuscript Division, Library of Congress.)