| http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2001/11/30/MN16641.DTL
Roosevelt's end run around the courts Secret trial provoked constitutional crisis William Carlsen, Chronicle Staff Writer Friday, November 30, 2001 The tense legal drama unfolding in Washington in the summer of 1942 had all the trappings of a constitutional crisis. President Franklin Roosevelt told his assistants that no matter what the Supreme Court decided in the case of the eight suspected German saboteurs he had ordered tried before a military tribunal, he was not going to turn them over to the federal courts. Army legal officers representing the men decided to challenge the president. They filed a habeas corpus petition in federal court, which if granted, would have required the men to be handed over to the civilian courts. The petition was quickly denied. Then, in an unusual meeting on the Pennsylvania farm of Justice Owen J. Roberts, where the jurist was enjoying the court's traditional summer recess, the defense lawyers persuaded Roberts and Justice Hugo Black to convene an extraordinary emergency session the next week. The military trial was temporarily suspended, and for two days the court heard oral arguments from each side. It was the longest argument session in court history. The defense cited as the controlling precedent a 1867 case in which the Supreme Court had explicitly barred the presidential authority to use military commissions to try cases "where the courts are open and their process unobstructed." "The Constitution of the United States is a law for rulers and people, equally in war and peace," the court stated, "and covers with the shield of its protection all classes of men, at all times and under all circumstances." The next day, the court issued a brief unanimous order upholding the president's authority to establish the tribunal. But, possibly aware of what Roosevelt had said, the court added that it alone had the power to decide such questions. That ruling leaves open the possibility of new court-ordered limits on President Bush's recent order to convene such tribunals |
