In the spring of 1941, a 46-year-old German intelligence officer named Lothar Eisentrager slipped across the Soviet-Chinese border and made his way to the Pacific port of Shanghai. There he assumed the name of Ludwig Ehrhardt and took charge of German espionage operations for the entire Far East—a mission that would ultimately lead to his conviction as a war criminal by an American military commission, a stretch at a U.S. Army prison in Bavaria, and a failed bid for freedom at the U.S. Supreme Court. Today, Eisentrager's long-forgotten case has re-emerged at the center of another Supreme Court struggle over the Bush administration's war on terrorism.
Next week, the justices will hear oral argument in appeals brought by 16 foreign nationals, held at the U.S. naval base in Guantanamo Bay, Cuba, who are accused of ties to al-Qaida and the Taliban. The court's decision could be one of its most important statements ever on executive power in wartime. As Eisentrager once did, the detainees seek the right to petition for a writ of habeas corpus in the U.S. District Court in Washington, D.C. Put simply, they want a day in court. The Bush administration says American courts have no jurisdiction to hear their petitions because they are enemy combatants and foreign nationals, held outside U.S. territory. (Under a century-old lease with Cuba the United States has "jurisdiction and control" at Guantanamo, but Cuba retains "ultimate sovereignty.") Therefore, the administration argues, the United States can hold them on Guantanamo indefinitely, without access to counsel or other legal rights.
As authority for this proposition, the administration cites the Supreme Court's June 5, 1950, ruling in Johnson v. Eisentrager, in which the court held that the constitutional guarantee of habeas corpus does not apply to enemy aliens who, like Eisentrager and his 20 German co-respondents in the case, were detained by the United States on foreign soil. So far, a district judge in Washington and the U.S. Court of Appeals for the District of Columbia Circuit have agreed with the Bush administration.
But should Eisentrager control the outcome of the Guantanamo case? Lawyers for the detainees say the situations then and now differ significantly. When the German Reich capitulated on May 8, 1945, Eisentrager and other China-based Germans found themselves thousands of miles from a devastated homeland with no mission and no money. Approached by representatives of the Japanese high command, they signed contracts to help Japan's military. Until Japan surrendered the following August 15, the United States later charged, these Germans supplied the Japanese with intercepts of U.S. naval communications (including key information during the Battle of Okinawa), German-made aircraft parts, and tens of thousands of leaflets aimed at U.S. troops.
In early 1946, the Germans were rounded up by the American Military Mission in China, and an American military commission convened in Shanghai that fall to hear the case against them. Their post-V-E collaboration with the Japanese was prosecuted as a war crime—specifically, contributing to the military efforts of the United States' enemies after their own country's unconditional surrender.
The charge was creative, but the proceeding was no kangaroo court. The Germans' U.S.-supplied defense lawyers fought vigorously, winning acquittals for six defendants. But, in January 1947, 21 others were convicted and sentenced to prison in the U.S. occupation zone in Germany. Eisentrager got a life term.
From prison, however, Eisentrager was able to contact an American lawyer. On April 26, 1948, he filed for a writ of habeas corpus in the U.S. District Court in Washington. On Sept. 30, 1948, Judge Edward A. Tamm dismissed the petition in a four-paragraph opinion. Since the Germans "are not now and have never been in the United States," Tamm wrote, they had no case. In April 1949, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously reversed, holding that the constitutional guarantee of habeas corpus applied to conduct by U.S. government officials, wherever they might be.
The Truman administration appealed to the Supreme Court. In his brief, Solicitor General Philip B. Perlman argued that, even if the Constitution follows the flag, as the D.C. Circuit had ruled, "it does not necessarily follow … that a judicial remedy is available. … There are many instances, particularly in the realm of foreign affairs and the conduct of war, in which the Executive is the primary and often the sole guardian of the Constitution." Eisentrager's lawyers countered that this "would make the exercise of fundamental rights depend on the accident of locus of incarceration."
Within the court, Justices William O. Douglas, Hugo Black, and Harold Burton supported the Germans. But Justice Robert H. Jackson, the former prosecutor at the Nuremberg international war crimes trials, commanded a six-justice majority in favor of the government's position. His strong rejection of the Germans' claims implies that he feared a precedent that might undermine war crimes convictions in Europe more generally. "To grant the writ to these prisoners might mean that our army must transport them across the seas for hearing," he wrote.
This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy.