The Case from WW II that Will Determine the Future of the Guantanamo Prisoners
Charles Lane, a staff writer at the Washington Post, in Slate (April 14, 2004):
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 Easta 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 crimespecifically, 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."...
Even though they lost their case, Eisentrager and his co-defendants soon won their freedom. By 1950, the Truman administration was feeling pressure for leniency toward German war criminals; both within the United States and a fledgling West Germany, the argument was made that friction over war crimes prosecutions hurt U.S.-West German unity against the Soviet Union. Truman set up a clemency process that, continued by the Eisenhower administration, resulted in the emptying of the U.S. prison for German war criminals by 1958. In Eisentrager, ironically, the Truman administration won the legal authority to deal with German war criminals as it pleased, and then, for political reasons, used that authority to let them go...
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Stevenlee L Uanna - 4/20/2004
The Eisentrager case is very interesting. A line from the article jumped out at me- "Approached by representatives of the Japanese high command, they signed contracts to help Japan's military." After the surrender of their government they joined themselves to their former allies under a "contract". Wouldn't that make them mercenaries? Perhaps the prosecutors at that time were unaware of this and with the Cold War hysteria these German agents were allowed to escape longer imprisonment. While they were probably spies before the surrender of Germany and subject to a firing squad if apprehended now they became just "employees" of the Japanese but still conspirators with other Germans who were transferring German technology to the Japanese after the surrender.
The "realities" of the Cold War and our new enemy the Soviet Union allowed much worse than Eisentrager to escape his punishment. Some were caught- Klaus Barbie, Adolph Eichmann (apprehended in 1961) Reinhard Gehlen (exposed but only after he had rose to head West German counter intelligence in the 1950's and 1960's. Many others escaped. The agency charged with apprehending these criminals during and after the war, the U.S. Army Counter Intelligence Corps was very effective but was also sidetracked in their job by operatives in our government who aided these criminals. But the CIC had an impressive record and many enemy agents they apprehended ended up infront of a firing squad. Amazingly, the CIC was ultimately taken out of the U.S. security structure. During the war the CIC looked into the backgrounds of over 400,000 Americans. The history of the CIC is detailed in an excellent book called AMERICA'S SECRET ARMY by Ian Sayer and Douglas Botting.
But Eisentrager had counsel and appeals filed on his behalf. The situation in Guantanamo is a real Catch 22.
Held incommunicado, the way we treat these "enemy combatants" may come back to haunt us. I am talking about the "contractors" who are employed in Iraq doing "security" type work. Many people are calling them mercenaries. Numbering more than 20,000 now and commanding high salaries they "supplement and support" our forces, forces that are stretched to the breaking point because the Bush Administration said our armed forces did not need to be larger to accomplish the liberation of Iraq. The killing of 4 of these "contractors" set off the present round of hostilities. Contract security firms have taken care of the security at our nations nuclear power plants and government weapon facilities for decades in violation of the "Pinkerton Law". Designed to keep private police agencies from developing. Will "contractors" man posts at the Homeland Security Department and enforce the Patriot Act? Apparently plans were under way for them to play a big role in Iraq. In Bosnia "contractors" were involved in white slavery and car theft rings. And members of a firm that is in Iraq now were recently arrested in Africa on charges of being hired mercinaries involved in a coup attempt.
If these "contractors" violate international laws, who is responsible? Imagine the world community's reaction if the contractors explain that being held responsible is not in their contract. Why would we want or need this private secret army? And what will we do if they are captured and treated like the prisioners in Guantanamo? Would the U.S. military be expected to rescue them.
Believe it or not the United States once had a good security system. One that did not need contractors to "support" it's mission. What happened to it? Here is a clue- one of the main architects of that system was murdered and his murder is being covered up by his former employer- the U.S. Department of State. Who incidentally vouches for the "contractors". At the State Department this man was the CHIEF OF THE DIVISION OF PHYSICAL SECURITY. His name was William Lewis Uanna. You can read about his career at: http://www.securitysuperchief.com
He has been written out of the so called OFFICIAL history of WW II and the Cold War. He had degrees in Engineering, Education and Law. He was the main security officer on the Manhattan Project. He set up the security system at the Atomic Energy Commission and cleared the Manhattan Project into the newly formed AEC. He named and wrote the criteria for the AEC's "Q Clearance". He oversaw the construction of the storage bases for our nations atomic arsenal in the late 1940's while we still had the monopoly. He wrote the briefing manual for the Office of Policy Coordination, the covert action section of our government originally under the Departments of State and Defense before the CIA got it. As Special Assistant to the Secretary of Commerce and during the Korean War he Chaired the FACILITIES PROTECTION BOARD and wrote "one of the primary manuals on industrial security". At the beginning of the Eisenhower Administration and at the height Senator Joseph McCarthy charges of Communist subversion he went to the State Department on a temporary assignment and wrote the EVALUATORS HANDBOOK with the intention that it be used to investigate both Communist and Fascist subversion in the investigation of State Department employees. He was retained to head the newly formed DIVISION OF PHYSICAL SECURITY. He started the MARINE GUARD TRAINING SCHOOL, wrote a PROTECTION OF DIGNITARIES MANUAL and was responsible for all of State's personnel and buildings worldwide. He also personally protected all visiting VIP's and in the site http://www.securitysuperchief.com you will see him pictured escorting Secretary of State John Foster Dulles. (It is interesting to note that Paul Bremmer's security is provided by contractors)??? One amazing fact about William Uanna or "Bud" as he was known is that he was a Stevenson Democrat. Why he was exiled to Addis Ababa, Ethiopia where he died (officially of a heart attack) on December 22, 1961 is the subject of the site. Bud Uaanna worked on the "Special Committee" of the NSC that planned covert action. The allegation that Bud was murdered was made at the end of the movie ENOLA GAY. If you are interested in WW II and Cold War history and wonder why the Homeland Security Department is still floundering around trying to protect our security 2 and 1/2 years after 9/11 this site may interest you. It also gives a new clue to who may have been involved in the assassination of JFK. The way we treat the prisioners in Guantanamo may come back to haunt us. President Bush has made statements recently about his faith in God. Remember the Golden Rule? "Do unto others as you would have them do unto you".
Thank You, Steven Uanna
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