This approach has been taken before. In 1942, eight German saboteurs came to the United States with explosives and instructions to disguise themselves as civilians, blow up factories, bridges, railroads and department stores, and spread terror. They were secretly tried by a military commission created by President Roosevelt, convicted, and six were executed less than two months later. The Supreme Court held that an enemy “who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property” was an “unlawful combatant,” subject to military trial and not “entitled to the status of prisoners of war.” A military trial has its pros and cons. It would allow intelligence secrets to remain just that, but international opinion would range from skeptical to hostile. And any decision to drop the “reasonable doubt” rule could lead to convictions of innocent people. Either way, it may be difficult to avoid further casualties of war.
