well have rested on the ground that the Constitution
is without restrictive force in wartime in a situation of this sort. The
saboteurs were invaders; their penetration of the boundary of the
country, projected from units of a hostile fleet, was essentially a
military operation, their capture was a continuation of that operation.
Punishment of the saboteurs was therefore within the President's purely
martial powers as Commander in Chief. Moreover, seven of the petitioners
were enemy aliens, and so, strictly speaking, without constitutional
status. Even had they been civilians properly domiciled in the United
States at the outbreak of the war they would have been subject under the
statutes to restraint and other disciplinary action by the President
without appeal to the courts.[93]

THE WAR CRIMES CASES

As a matter of fact, in General Yamashita's case,[94] which was brought
after the termination of hostilities for alleged "war crimes," the Court
abandoned its restrictive conception altogether. In the words of Justice
Rutledge's dissenting opinion in this case: "The difference between the
Court's view of this proceeding and my own comes down in the end to the
view, on the one hand, that there is no law restrictive upon these
proceedings other than whatever rules and regulations may be prescribed
for their government by the executive authority or the military and, on
the other hand, that the provisions of the Articles of War, of the
Geneva Convention and the Fifth Amendment apply."[95] And the adherence
of the United States to the Charter of London in August 1945, under
which the Nazi leaders were brought to trial, is explicable by the same
theory. These individuals were charged with the crime of instigating
aggressive war, which at the time of its commission was not a crime
either under International Law or under the laws of the prosecuting
governments. It must be presumed that the President is not in his
capacity as Supreme Commander bound by the prohibition in the
Constitution of _ex post facto_ laws; nor does International Law forbid
_ex post facto_ laws.[96]

THE PRESIDENT AS COMMANDER OF THE FORCES

While the President customarily delegates supreme command of the forces
in active service, there is no constitutional reason why he should do
so; and he has been known to resolve personally important questions of
military policy. Lincoln early in 1862 issued orders for a general
advance in the hope of stimulatin