BOTEURS[89]

The saboteurs were eight youths, seven Germans and one an American, who,
following a course of training in sabotage in Berlin, were brought to
this country in June 1942 aboard two German submarines and put ashore,
one group on the Florida coast, the other on Long Island, with the idea
that they would proceed forthwith to practice their art on American
factories, military equipment, and installations. Making their way
inland, the saboteurs were soon picked up by the FBI, some in New York,
others in Chicago, and turned over to the Provost Marshal of the
District of Columbia. On July 2, the President appointed a military
commission to try them for violation of the laws of war, to wit: for not
wearing fixed emblems to indicate their combatant status. In the midst
of the trial, the accused petitioned the Supreme Court and the United
States District Court for the District of Columbia for leave to bring
_habeas corpus_ proceedings. Their argument embraced the contentions:
(1) that the offense charged against them was not known to the laws of
the United States; (2) that it was not one arising in the land and naval
forces; and (3) that the tribunal trying them had not been constituted
in accordance with the requirements of the Articles of War.

The first argument the Court met as follows: The act of Congress in
providing for the trial before military tribunals of offenses against
the law of war is sufficiently definite, although Congress has not
undertaken to codify or mark the precise boundaries of the law of war,
or to enumerate or define by statute all the acts which that law
condemns. "* * * those who during time of war pass surreptitiously from
enemy territory into * * * [that of the United States], discarding
their uniforms upon entry, for the commission of hostile acts involving
destruction of life or property, have the status of unlawful combatants
punishable as such by military commission."[90] The second argument it
disposed of by showing that petitioners' case was of a kind that was
never deemed to be within the terms of Amendments V and VI, citing in
confirmation of this position the trial of Major Andre.[91] The third
contention the Court overruled by declining to draw the line between the
powers of Congress and the President in the premises,[92] thereby, in
effect, attributing to the latter the right to amend the Articles of War
in a case of the kind before the Court _ad libitum_.

The decision might