Evening star., 1942-07-29

nomic warfare. 1t is an integral
part of modern total warfare. And
today the nation that will not wage
total war usually meets total defeat.
Even if these petitioners were
| entitled to access to our courts, to
test the validity of their detention,
this court should find that they may
legally be tried by the military COM
mission set up for that purpose by
the President.
BY no stretch of Interpretation
can the doctrine of Ex Parte Milli-
gan, WALL 2 1850, be applied to
these proceedings Milligan never
wore the uniform of the armed
forces at war with the United States.
The petitioners did. Milligan was
continuously resident of Indiana
He did not cross through the lines
and enter into a theater of opera
tions. The petitioners were resi-
dents OF Germany and as agents of
the German government crossed our
lines secretly, in enemy warships for
the purpose of committing hostile
acts.
Total Theater of War.
"Milligan was charged with the
commission of military offenses at
time when invasions gave their
slow fore warning months in ad-
vance. In the year 1912, we have
had concrete experience with the
swiftness Of modern warfare. Ex-
perience-which should be plain by
now-has demonstrated that the
theaters Of operations which existed
in 1864 are not the theaters of oper-
ations of 1912. Wars today are
| fought on the total front. on the
battleflelds of joined armies, on the
battleflelds of transportation and
morale, by bombing. the sinking of
ships, sabotage, spying and propa-
| ganda.
Military orders setting up zones
of operations are hardly necessary
to attest the fact that the enemy
submarines crossed our lines into q
"theater of operations" We know
from the common fact of sinkings
OF our merchant ships by sub
marines on our whole East Coast
that our defenses are daily being
pierced. We know that the two
submarines were able to cross our
| lines and land these men on our
patrolled shores. We know that ou1
whole East Coast is a theater OF
operations in substantially the same
sense as the North Atlantic or the
British Isles. The East Coast OF
today is far cry from the Indiana
Of Milligan in 1864.
Clear Duty Of President.
"The Articles of War specifically
provide that violations of those ar
ticles and the law of war by persons
| not members of our armed forces
can be tried by military commits
sions. The President, under his oath
to protect and defend the United
States against it's enemies, had the
clear duty to meet force with force
and to exercise his military author
ity to provide speedy, certain and
adequate answer, long prescribed
by the law of war, to this attack or
the safety of the United States by
invading belligerent enemies. The
military commission was his answer
to this incursion.
These petitioners-as belligerent
enemies-can be tried by the mil
itary commission and, by the same
token, are not entitled to any con-
stitutional right to trial by jury
or to the other similar rights which
they assert. Under time tested prin-
ciples of our common law and the
international law of war, their status
as belligerent enemies, their pur-
poses and their acts deprive them
of the benefits which they now
demand of the State which they
sought to destroy. In addition, the
Constitution itself provides that in
cases arising in the land or naval
forces, the normal constitutional
guarantees do not apply. Our owr
soldiers and sailors can assert none
of these guarantees when charged
with military offenses. 1t would b|
fantastic to extend such privilege!
to invading soldiers of the enemy.
Trial Valid and Proper.
THE history of military tribunal!
before the Constitution was adopted
the adoption of the Constitution
with specific exception In such cases
and the passage by the Congress O
the Articles of War make it clea
beyond a doubt that, in cases such
as these, trial by military commits
sion is valid and proper
Under the exercise of the Presi
dents powers as Commander il
Chief, and by express statute, mill
tary commission need not follow
the procedure of courts martial, no
need they give to belligerent enemie
the rights which are afforded b.
statute to the members Of our ow,