Traitors and Spies in the Time of War: How the Supreme Court Determined Who Would Live and Who Would Die


In April 1865 over 600,000 Americans lay dead from battle wounds and other causes directly related to their service in the armies of the Confederacy and Union during the four-year Civil War. If we adjusted the number of dead in proportion to our modern population of 300 million, it would be approximately 5,000,000 deaths—a truly gargantuan number.

There is little question about the chain of events that led to the secession of South Carolina and, eventually, eleven states total. While Southern apologists then, and some historians now, argue that the blame for secession was shared between North and South, no one then or now disputes who led the Confederacy: President Jefferson Davis and General Robert E. Lee. Yet neither man was ever tried or convicted of treason (an act they most certainly committed) by either a military tribunal or a civilian court.

Almost eighty years later, in the middle of the night of June 13, 1942, on a beach near Amagansett, New York, four German saboteurs armed with weapons, explosives, and other devices rowed ashore from a German U-boat on a mission to blow up and otherwise disable American defense plants. These four men, all of whom had lived for a time in United States before World War II—along with another similarly equipped group of four enemy agents who came ashore four days later near Jacksonville, Florida, after disembarking from another U-boat—were quickly captured and charged with spying, a capital offense.

Though neither group accomplished their goals of industrial sabotage, and some historians question how serious the eight men were about actually carrying out acts, there was no doubt they were equipped to do significant damage. As America was at war during this time, the eight men were tried by military tribunal rather than in civilian courts. The court cases began on July 8, 1942, and concluded with the conviction of all eight on August 4, 1942. All were sentenced to death and, after President Roosevelt commuted the sentences of two who had volunteered information to the government, six were executed at the District of Columbia Jail on August 8, 1942.

Two Supreme Court Cases, Ex Parte Milligan (1866) and Ex Parte Quirin (1942) are legally responsible for the different punishments meted out to Davis and Lee and the eight German saboteurs. In this lesson, students and teachers will study and discuss the different court cases and their effect on these two events in particular, as well as their relevance to legal proceedings in the war on terror today.


  1. Students will understand the basic facts surrounding the events that precipitated each of the two court cases studied. This knowledge will include:

    • An understanding of the plot that Confederate sympathizer Lambdin P. Milligan and four others were charged with participating in.
    • An understanding of Operation Pastorius (the case of the German saboteurs), both the plan and what actually happened.
  2. Students will develop an understanding of the two court cases. This understanding will include:
    • Knowledge of the Ex Parte Milligan case, including the Supreme Court ruling.
    • Understanding the way in which the Ex Parte Milligan case affected the treatment of Jefferson Davis and Robert E. Lee after the war.
    • Knowledge of the Ex Parte Quirin case, including the ramifications of the court's decision about the eight Nazi agents.
  3. Students will explore and analyze a number of primary and secondary sources as well as multimedia resources as they study these cases.
  4. Students will compare the two Supreme Court decisions and their outcomes for Davis, Lee, and the eight German saboteurs.
  5. Students and teachers will have the option of applying their newly learned knowledge in a debate how about foreign and domestic terrorism today.




Additional Print Resources

  • Michael Dobbs, Saboteurs: The Nazi Raid on America (New York: Alfred A. Knopf, 2004). The story of the 1942 Nazi attempt to land eight agents along the East Coast to carry out acts of sabotage.

Online Resources

Ex Parte Milligan:

Ex Parte Quirin and Operation Pastorius:

Activity 1: The Treason of Jefferson Davis and Robert E. Lee

  1. Read and discuss the following excerpt from the United States Constitution:

    Article III Section 3 of the Constitution of the United States, Art. III, states:

    Treason against the United States, shall consist only in levying war against them [Note: the States are written in the plural in 1787], or in adhering to their [the states'] enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

    • What are the key points of this excerpt from the Constitution?
    • How does the Constitution define treason?
    • What conditions are placed upon convicting a person of treason?
  2. Read the following statement:

    "Regardless of one's opinion on the Southern decision to attempt to secede from the Union the Constitution makes it clear that both Jefferson Davis and Robert E. Lee (along with a host of other Confederates) levied war against them and therefore committed treason."

    • Do you agree with this statement?
    • Did Jefferson Davis and Robert E. Lee commit treason as defined by the Constitution?

    Article III Section 3 goes on to say that:

    The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

    • Congress had the power to declare treason a crime punishable by death, and it did.
    • Other men were tried and convicted of treason before the Civil War. In 1859 abolitionist John Brown was famously convicted and executed for committing treason against the State of Virginia at Harpers Ferry. In an ironic twist, John Brown and his followers were captured by Union Army Colonel, Robert E. Lee.

    Why didn't the United States government try, convict, and execute Jefferson Davis and Robert E. Lee?

Notes for teachers:

Here are the key things to consider regarding Davis and Lee.

  1. They were guaranteed a trial in the locale where the crime took place (i.e. the South).
  2. They were guaranteed the option of selecting trial by a jury of their peers.
  3. Where in the South could you find a jury of white men willing to unanimously convict Robert E. Lee or Jefferson Davis?
  4. Ex Parte Milligan essentially forbade the government from trying them in a military court.
  5. Neither Lee nor Davis were at the time of their treasonous activities members of the U.S. military. Both had legally resigned their commissions—Davis many years earlier, Lee in early 1861—therefore, neither could be tried in military courts.

Though I tell my students to avoid Wikipedia like the plague, there is an accurate and brief description of just what Milligan was charged with and convicted of, as well as a description of the court case. 

Activity 2: The German Saboteurs and Ex Parte Quirin

  1. Read and discuss the basic facts of Operation Pastorius:

    Prior to this activity the teacher will need to go to the FBI website and print out the story of Operation Pastorius. The text and photos can be easily highlighted, copied, and pasted into a word document, or students can access the information at the FBI's famous cases webpage.

    A second online resource on the landing on Long Island is available at Night of the Nazis, Montauk Life.

  2. In the chart provided above students can answer ten basic questions about Operation Pastorius. This can also be done as part of a class discussion.

  3. Ex Parte Quirin:

    The eight saboteurs were tried by a military tribunal starting on July 8, 1942 and concluding with the conviction of all eight on August 4, 1942. All were sentenced to death, and, after President Roosevelt commuted the sentences of two who volunteered information to the government, the other six were executed at the District of Columbia Jail on August 8, 1942.

    During the military trial, one of the defendants, Richard Quirin, challenged the legality of the tribunal under which he was being tried. Quirin's lawyers argued that all eight defendants had a right to trial in the civil courts. They mentioned the Ex Parte Milligan case in their plea.

    The Supreme Court met in special session on July 29, 1942, and ruled that the president had the right to order the creation of a special military tribunal. Excerpts from the Court's decision can be found on the sites listed below:

    A brief explanation of the case can be found at (also linked above). This is probably more suitable for student use because it's much shorter than the excerpts from the Court's decision.

  4. Was it legal?

    Does the president have the right to try enemy spies or combatants captured on U.S. soil in military tribunals?

Notes for teachers

Here are key elements to consider regarding the case of the German Saboteurs.

  1. They were tried secretly—a public announcement was not made until later.
  2. The government feared that a public trial would make defense secrets public.
  3. Some argue that J. Edgar Hoover and other government officials were concerned that a public trial would open their agencies to criticism for not capturing the saboteurs on their own (without the betrayal of the men by one of their number).
  4. A number of the online articles listed in the resources are critical of the government's efforts to capture the saboteurs.
  5. Both the defense attorneys filing their petition for Richard Quirin and the Supreme Court cited Ex Parte Milligan—though each side viewed the precedent of Milligan differently.
  6. The citing of Ex Parte Milligan provides the opportunity to discuss the importance of precedent in our legal system.

Extension Activities

  1. The terrorist attacks of September 11, 2001, left 3,000 American civilians dead. Ask your students how those responsible for the attacks should have been or should be tried upon capture.
  2. It might be useful to also discuss or briefly study the trials of other recent terrorists such as Timothy McVeigh, whose 1995 attack on the Alfred P. Murrah Federal Building in Oklahoma City left 168 dead, or Theodore Kaczynski, the Unabomber. In both cases the two men were tried and convicted in civilian courts.

    There is information on McVeigh's trial on the Famous Trials website from University of Missouri Kansas City Law Professor Doug Linder.