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a Jx6 Saboteurs' Appeal, E BN AES ste ger ecm ee " ity of Congress comes from its constitu- ~ ~teurs for transfer of their trial from the > -° The § Court makes history to-: ’ day, meeting = special session to hear the: habeas corpus appeal of the Nazi tabo- | military to civil courts. Depending on what the court does, and still more upon its reason for doing it, this may turn out | to be one of the most important cases in! our judicial annals. . : _ The accused men are being tried by a military court set up by the President as commander in chief, under authority de- rived from acts of Congress. The author- tional power to “make rules for the gov- ernment and regulation of the land and naval forces’—a power historically con- strued to include the punishment of civil- ian spies. No grand jury indictment is’ required “in cases arising in the land or naval forces... in time of war or public ; danger.” Although the right of habeas corpus can be suspended in times of re-|. bellion or invasion, it has not been i in this - war, | : The purpose of the defense attorneys. in seeking a transfer to the civil courts: is not clear. They may be acting at the. request of the defendants, who if con-! victed by a military court will receive a mandatory death penalty, but who might escape death in the civil courts. They may be acting simply as lawyers, expect- ing a denial of the writ, but feeling that they must use every possible legal de- fense for their clients. Or, the military court itself, or the Attorney General, may “have suggested this move, expecting the writ to be denied, but febling that such a denial would remove any doubt in the public mind about the legality or fairness of the military trial. There is a final possibility that the government feels haky about the legality of a military trial afg wants the case transferred. It — alsdwpe intended to set a ay g 3 ms | “ mo ‘ A f / r J | tary courts are not part of the federal. itary law is by no means cleaNi ts ‘relationship to the civil courts. Mi judiciary system. Appeals from sentences by court-martial are to the President, not to the Supreme Court. To an uncertain extent, however, the civil courts can in- tervene to prevent arbitrary action by the! military courts. ~~ During the Civil War, when control | of the border states was in balance, Presi- dent Lincoln suspended the writ of habeas corpus in order to stop’ the wholesale re- lease of Copperheads who were being tried by court-martial. His power to do so, without the consent of Congress, was doubtful, though it may have saved the Union. After ,the war, in 1866, in the famous Milligan Case, the Supreme Court held that where a state was not invaded or in rebellion, and the civil courts were open, a military comnrission was without power to try a citizen for disloyal prac- tices or aiding the enemy. . In the present case, the Supreme Court may deny that it has any jurisdiction; holding, for instance court-martial- of spies in wartime is a military function, or ruling that members of the armed forces of an enemy nation cannot appeal from the military to the civil courts. If it ac- cepts jurisdiction and decides to pass on the appeal for a writ, a whole set of new questions will arise as‘to the extent and scope of military law. The fact that these saboteurs find a Supreme Court to tie | “tFte—en ironic ¢ommentary upon th devotion to Adolf Hitler. | bn - 2765! CHICAGO SUN Ve te S2- 2 A NOT RECORDED