Detroit evening times. (Detroit, Mich) 1921-1958, 1942-08-04
Civil Trial
A Vital Issue
In Spy Case
BiddIe Sought Decision
on Army Court
BY PAUL MALLON


Nazi saboteurs received abusive
letters and kilograms from citi-
zens out in the country for TAX
ing their case to the Supreme
Court.
The public apparently thought
Colonies Kenneth s. Royal and
Cassius Dowell were doing
little more than necessary of
their sworn duty by calling the
Supreme Court back from its
vacation just 30 confirm every
body's judgment about seven
obvious saboteurs. Up close.
however, the case had an en-
tirely different aspect.
Among officials who were far
from angry at Colonies Royal
and Dowell was Attorney Cen
eral Biddle. He seemed almost
too glad il happened that way.
His court room manner sug-
gested that if he had not
encouraged the colonies, he GER
tainly relished the opportunity
they presented him. He made
the argument great occasion
10 try TO break down the civil
war case of lex Parte Milligan."
which has restricted presidential
handling Of civilians ever
since.
MR.. BIDDLE openly sought TO
A'A have the court say the
President could order army
court-martials for war recalci-
trants caught attempting TO I'M
dermine our cause. not only on
the battlefield. in transportation,
or actual blowing up of fac
tories, but for those who sabo-
tage morale with ''propa-
ganda."
Biddle mentioned these two
words morale" and 'propa-
-ganda" in such a way as TO in
innate he wanted the army,
rather than civil courts, 10 try
some of the minor mice in our
midst and the intellectual sabo-
teurs. At one point he said:
The time may now have
como when the exigencies Of to-
tai and globaI war must force
a recognition that every foot
Of this country Is within the
theater of military operations.
Under modern conditions, war
fare by saboteurs and spies i'm
periIs the national safety just
rs much as warfare by tanks
and submarines"
IN Eek Parte Milligan," an
Il Indiana citizen, Lambdin p.
Milligan, was charged with
having conspired to free Con-
federate prisoners in his state.
These prisoners were TO attack
arsenals and seek TO obtain guns
and ammunition.
A military commission was
named to try him.
president Lincoln had SuS-
pended the writ of habeas cor
pus).
Milligan was found guilty.
sentenced to death and came TO
the Supreme Court.
The court ruled no civilian
citizen could be tried by
military commission as long as
the civil courts were open, and
said furthermore, the courts
could not be closed except
where martial law had been de-
clared, based on an actual in
vasion. making it impossible for
the courts TO function fairly.
AS Indiana had not been in
vaded, the court ordered MILL
gan tried by his civilian peers.
DOTH New Deal Justices
- Robert II. Jackson and Hugo
Black betrayed alarm at Biddle's
effort to change this celebrated
law. Their questions suggested
they envisioned the possibility of
the President gaining power to
order some offending newspaper
editor tried by a military court.
Biddle did not want TO 60 that
far in argument. He volunteered
I h a persons, such as Editor
William Griffin of the New York
Sunday Enquirer, charged with
seditious utterances could not be
fried by a military court. He
wanted a line drawn somewhere,
but did not say where. If he
had won his argument. appar-
emily he would have drawn the
line anywhere he chose.
Colonel Royal needed Biddle
on the point that his contention
would allow a military court 10
try union strikers, but Biddle
only agreed this would be pos
Sible if the strike was proved TO
have been promoted by foreign
enemy.
THE court seemed to step on
L Biddle gently in its decision
memo. 1t did not 60 into detail,
but significantly restrained it.
self 10 holding that in this par
ticular case, the President had
not exceeded his power in order
ing military trial. 1t did not
overthrow lex Parte Milligan."
The full written opinion. of
course, is yet 10 be handed down.
The vital aspect of the case is
therefore still hanging in the air.
Rut IL tho court followS tho