The military tribunal had gone on for 18 days, and the judges worked through the weekend to reach their verdict. They sent it on Monday to the president, who determined the penalty. Six of the eight defendants were condemned to death-the sentence the president had said he wanted even before the trial began-while the other two received long prison sentences. To ensure there was no attempt to appeal, the eight accused and their lawyers were kept in the dark until the following Saturday morning, when Provost Marshal Gen. Albert L. Cox went from cell to cell accompanied by a chaplain. By then, their time was almost up. The executions began at one minute past noon; at 1:04 p.m. the last of the six was pronounced dead. They were buried secretly in a potter's field at Blue Plains in Southwest Washington three days later.
The defendants were would-be saboteurs sent by Nazi Germany, and their capture in June 1942 was one of the few high points early in a war that had started off badly for the United States. Their trial, as President Franklin Roosevelt ordered, was conducted in strict secrecy, with seven U.S. Army generals sitting as judge and jury, relying on evidence that would not have passed muster in a civilian court.This is the case that President Bush relied on most heavily for his November 13 order empowering him to create military tribunals for accused foreign terrorists and their collaborators and declaring 'not practicable . . . the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.' Bush's order, citing a state of emergency he had proclaimed following September 11, was designed to provide swift military justice for al Qaeda members captured in Afghanistan and elsewhere. The order, as written, denied such defendants the right to judicial review from civilian courts.So it was in 1942, in the case known in Supreme Court records as Ex Parte Quirin.
The court's decision is widely deemed by legal scholars to be strained and evasively worded, and it left deep misgivings even among the justices who wrote it to justify six electrocutions that had already taken place. It is a case that stands as a classic example of what historian Robert Higgs has called the 'Crisis Constitution' overriding the 'Normal Constitution' in times of emergency, making the government's exercise of power more important than the protection of individual rights.
Had the courts tried to stand in the way, the president made clear he would have ignored them. 'I want one thing understood, Francis,' FDR told his attorney general, Francis Biddle, who served as lead prosecutor. 'I won't give them up . . . I won't hand them over to any United States marshal armed with a writ of habeas corpus. Understand?'
The case of the eight Nazi saboteurs is, as one chronicler, David J. Danelski, has written, 'a fascinating tale of intrigue, betrayal and propaganda,' not to mention a rush to judgment and then to the electric chair, a flag-waving plea for a unanimous stamp of approval by the Supreme Court and, not least, an FBI coverup that outlasted the war.
Adolf Hitler personally demanded that his military come up with a plan to demonstrate America's vulnerability and the reach of Nazi power. The German high command devised an ambitious two-year sabotage plan, to be run out of a commercial art shop in Chicago. The plot called for the destruction of key railroad installations, aluminum factories, power plants, bridges and canal locks, plus targets of opportunity, such as Jewish-owned department stores, that could create public panic.
The first man recruited for the mission was George John Dasch, 39, a German-born former waiter who had spent 19 years in the United States and spoke perfect American-style English. Dasch had returned to Germany in May 1941 and landed a comfortable job monitoring American news broadcasts. Dasch would later say that he soured on the Nazis soon after his return and vowed even before he left Germany to betray the sabotage plot.
Dasch was put in charge of a four-man team that landed ashore in Long Island. A second team put ashore near Jacksonville, Fla. The two teams were to join forces in Cincinnati on the Fourth of July and set to work. All eight had received new identities and a month's training in explosives and spycraft before being shipped off in two U-boats.
Dasch and his team arrived on the beach at Amagansett, N.Y., just after midnight on June 13. They were partly dressed in military uniforms, which they proceeded to bury, along with four crates of TNT, fuses, timing devices and pre-made bombs. While his men were changing, Dasch encountered John Cullen, an unarmed Coast Guardsman on foot patrol. Dasch told Cullen he was a fisherman who had run aground. When the patrolman insisted that Dasch come along to the Coast Guard station nearby, Dasch said he did not wish to kill him and instead offered him $260 to forget what he'd seen. Dasch told Cullen his fake name-George J. Davis. Cullen dashed off to the station, reported the encounter and turned in the money.By daybreak the Coast Guard had discovered the uniforms and the explosives, and it informed the FBI at 11 a.m. By then, however, the saboteurs were buying fresh clothes in Jamaica, Queens, on their way to Manhattan.
Once in New York City, the men paired off, and Dasch informed his partner, Ernest Peter Burger, a disillusioned former storm trooper, that he intended to turn in the group. Burger told Dasch he had suspected as much, and said he agreed with the plan. But when Dasch phoned the FBI's New York office on June 14 to pave the way for a meeting with J. Edgar Hoover, he was dismissed as a crackpot.
Unaware of that, Dasch took a train to Washington four days later, envisioning a meeting with Hoover and expecting to be treated as a hero. He checked into the Mayflower Hotel, called FBI headquarters on the morning of June 19, and waited triumphantly for the car that picked him up half an hour later.
Instead of seeing Hoover, he recounted in a 1959 book, he was treated skeptically and shuttled from office to office until he finally opened a briefcase he brought with him and dumped out a pile of $50 bills-more than $82,000-that had been given him as leader of the Long Island team. At that, Dasch remembered, one of his FBI interrogators told another agent: 'Lock that door, man. We've got something real here.'
'That's a lot of malarkey,' says Dasch's main FBI handler, Duane L. Traynor, now 91. Traynor, who was head of the FBI's sabotage unit, says he took Dasch seriously as soon as he saw him. The German had a silver streak down the middle of his hair, just as described by the Coast Guardsman who had encountered him on the beach the week before.
The FBI, Traynor says, also knew about the money before Dasch showed it to him on the second morning of his interrogation. Other agents had searched his hotel room at the Mayflower that first day while he and Traynor were talking.
Dasch's confession covered 254 typewritten, single-spaced pages, but it took the detection of invisible writing on a handkerchief he gave the FBI, and some help from Burger, to find the other men. By June 27, the FBI had rounded up all of them. All quickly signed confessions. In two cases, portions were dictated by FBI agents because, Hoover said in a 1945 memo, 'the defendants were not able to properly express themselves.'
That evening, Hoover hurried up to New York to announce their capture. He released brief biographies and photos of the Germans, a description of where and how they had landed, and a list of their objectives and the explosives they had brought with them. But Hoover credited only the FBI with their capture, omitting any mention of the Coast Guard or Dasch, leaving the impression that his sleuths had been waiting on the beaches in New York and Florida when the two teams landed.
'The country went wild,' Biddle wrote in his memoirs. '[I]t was generally concluded that a particularly brilliant FBI agent, probably attending the school in sabotage where the eight had been trained, had been able to get on the inside and make regular reports to America.'
Secretary of War Henry Stimson hit the roof, too, but not happily. Military intelligence had wanted to watch and wait until August when two more teams of saboteurs were expected to come ashore. Hoover's grandstanding ruined that plan.'I have never seen Stimson so furious,' recalls Washington attorney Lloyd N. Cutler, then a junior lawyer on the prosecution team. 'Hoover grabbed all the glory and made the announcement without telling Stimson.'
The arrest of the saboteurs triggered roundups of hundreds of German aliens said to be Nazi sympathizers, arrests of other spy suspects in neighborhoods 'densely populated with Germans,' involuntary sales of the assets of Axis-controlled companies, and the death of a German woman in New Jersey who suffered a cerebral hemorrhage as FBI agents questioned her and her husband in their Glassboro home. When it emerged that three of the accused saboteurs had worked as waiters in the United States before the war, the Justice Department ordered the dismissal of all German and Italian waiters, barbers, busboys, housemen and maids from Washington's hotels, restaurants and clubs-on the theory that they might hear too much from loose-lipped customers.
With the eight in custody, the next question was what to with them.In a memo to Stimson on June 28, Army Maj. Gen. George V. Strong of the military intelligence division proposed a military commission: 'The exigencies of the present situation appear to demand drastic action without too much deference to the technical rights which might be accorded, under the Constitution . . .'A civilian trial was quickly ruled out. After all, the men had not even begun their terror campaign when caught, so even the charge of attempted sabotage, which carried a 30-year maximum sentence, seemed unlikely to stick. Lawyers at the War Department concluded that if the saboteurs were tried in a civilian court, they could be convicted of 'only a two-year offense at most'-most likely conspiracy to commit a federal crime.
FDR told Biddle he was inclined to try the Nazis by court- martial because that would carry the death penalty, which he called 'almost obligatory.' But a court-martial would have required proof beyond a reasonable doubt, strict rules of evidence and a unanimous verdict. Biddle and his top troubleshooter on the case, Oscar Cox, had what they considered a better idea: a military commission with lesser standards.
Boris Bittker, a young lawyer assigned to the case and later a prominent Yale law professor, said the Justice Department's criminal division questioned the constitutionality and wisdom of a military trial when the civilian courts were open and functioning normally. Biddle and Cox, however, wanted to satisfy the president.'According to gossip in the corridors of the Justice Department, the White House hoped that the drama of a military trial would help to convince the public that we really were at war and to end the civilian complacency that prevailed even in 1942, six months after Pearl Harbor,' Bittker wrote in a 1997 law review article.
Acting as commander in chief, President Roosevelt opted for the commission. He issued an order on July 2, naming the judges, the prosecutors and even the defense lawyers, and allowing the admission of any evidence that would have 'probative value to a reasonable man.' Roosevelt told his secretary he hoped the verdict would be unanimous, but his order said a two-thirds vote would be sufficient.Ignoring provisions in the Articles of War requiring military review of such proceedings, Roosevelt concluded the order by directing that the trial record and verdicts be sent directly to him for final action. As Michal R. Belknap, a historian and constitutional law professor who has studied the case, points out, this guaranteed 'there would be no appeal except to the mercy of the commander in chief.'
The president also signed a proclamation prohibiting the accused from seeking any remedy in the courts of the United States, except as authorized by the attorney general or the secretary of war. Biddle told FDR this would have 'the same practical results' as suspending the writ of habeas corpus-a time-honored way of challenging one's detention enshrined in the Constitution-without actually taking such a controversial step. The proclamation was 'wretchedly drafted,' Belknap says.Cutler is convinced that the main reason for secrecy was to conceal the fact that 'the FBI hadn't done the real work in capturing the Nazis'-a fact Hoover fudged even in written communications with FDR. Not once in the three 'personal and confidential' memos he sent to FDR between June 16 and June 27 did Hoover mention that one of the saboteurs had turned himself in. In his June 27 memo to the president, the FBI director also falsified the date Dasch had been taken into FBI custody, making it seem as if the turncoat had been 'apprehended' after the other three Long Island saboteurs had been picked up. The public was given the same story.Dasch was bewildered when FBI agents told him on June 27 he would have to be prosecuted with the others in order to keep his part in the arrests secret. Secrecy was essential, the agents warned him, lest the Germans realize how porous the U.S. coastline was. There was another consideration as well: If Dasch fought the case, revealing his role, the FBI told him, the Nazis would wipe out his family.
Reluctantly, Dasch agreed to go along after the FBI men assured him he would get a presidential pardon once the case had died down, in three to six months. He was brought to New York and jailed with the others.
The trial began in Room 5235 of the Justice Department on July 8. Each morning, a heavily armed motorcade would interrupt rush-hour traffic, bringing the prisoners from their cells at the D.C. jail in two covered black vans. A carload of FBI agents would lead the procession. Two Army scout cars, each with two mounted machine guns and soldiers packing tommy guns, had their sights trained on the vans. An armed soldier stood on the rear platform of each van. In the evening, the same parade was staged in the reverse direction.
On the fifth floor of Justice, reporters assigned to the trial would keep watch from the press room where they could speculate in print on the comings and goings of unnamed witnesses. They weren't allowed inside.
Everyone in the courtroom, except the prisoners, was sworn to secrecy. Responding to complaints by Elmer Davis, newly appointed head of the Office of War Information, the president of the commission, Gen. Frank R. McCoy, relented only to the extent of issuing uninformative daily bulletins and one day allowing 12 reporters to enter the room to see the prisoners. They were all presentably dressed, in the civilian clothes they had bought for themselves, although The Washington Post's reporter took exception to one defendant's loud red-flowered tie and said he needed a shave.
The four charges against the Germans-Dasch, Burger, Herbert Hans Haupt, Richard Quirin, Heinrich Heinck, Edward Kerling, Werner Thiel and Hermann Neubauer-all carried the death penalty as violations of the laws of war. The men were accused of sneaking past 'the military and naval lines' of the United States in civilian dress for the purpose of committing sabotage, of 'relieving' enemies of the United States with arms, ammunition and other things and giving intelligence to those enemies, of 'lurking or acting as spies in or about' U.S. fortifications and encampments, and finally of conspiring with one another and the German Reich.
The defense team, led by Army Cols. Kenneth C. Royall and Cassius M. Dowell (Dasch had separate counsel), put up a stiff battle, but Cutler remembers how even 'perfectly valid' objections were batted down. Royall protested vigorously against the use of each defendant's confession against the others, calling it hearsay that would never be permitted in a civilian courtroom, but Biddle prevailed, emphasizing what he said was the 'practical way of arriving at the truth,' using evidence that would persuade 'reasonable men.'
It 'was pretty apparent in the beginning that the commission was against us,' recalled Royall, an accomplished trial lawyer from North Carolina who later became secretary of war under President Harry Truman, in an oral history. 'We thought of an old saying in Reconstruction Days: §Give the [Negro] a fair trial and hang him quick.' '
As lead prosecutor, Biddle offered a straightforward case. Despite their signed confessions, all eight pleaded not guilty in hopes of avoiding the death penalty. Biddle and his partner, Gen. Myron Cramer, the Army's judge advocate general, proceeded methodically, presenting witnesses who testified about the Nazis' arrival in the United States, the explosives they brought with them, the handkerchief with secret writing dramatically exposed by fumes of ammonium hydroxide, and the confessions.
Royall had one last card to play. He intended to go to the Supreme Court to contest Roosevelt's right to deny them access to the civil courts. As Army officers, he and Dowell knew they risked the ire of their commander in chief, and so they wrote the president on July 6, asking for authorization to challenge his order. FDR did not respond, leaving it for his secretary, Marvin McIntyre, to tell the two men to make up their own minds about their duty.
Royall and Dowell asked for a writ of habeas corpus in federal court here, and were turned down on July 28, as the trial was coming to a close. The next day the Supreme Court heard their appeal.
Justice Frank Murphy, who had just come back from military training as a lieutenant colonel, felt compelled to disqualify himself, but, as Eugene Rachlis wrote in a 1961 book, 'this did not prevent him . . . from placing a chair behind the heavy red curtains and eavesdropping on the entire proceedings.'
As counsel for the seven petitioners (Dasch's lawyer declined to take part), Royall began what would be one of the longest sessions in the Supreme Court's history by trying to poke holes in the government's case. He said the evidence had showed no overt act, nothing more than preparation to commit the act of sabotage; he argued that it was a stretch to call the Long Island beach a zone of active military operations because it was patrolled by an unarmed Coast Guardsman, and he maintained that the Articles of War called for tighter rules of evidence than FDR had prescribed for the commission. But above all, Royall emphasized that, under a Civil War precedent known as Ex Parte Milligan, anyone not in the armed services of the United States could not be tried by a military tribunal when civil courts were open and functioning.
The landmark 1866 decision involved a petition by Indianapolis civilian Lambden P. Milligan, who had been sentenced to hang by a military commission during the Civil War for plotting to assassinate the governor of Indiana, free Confederate prisoners held near Chicago and seize the federal arsenal at Rock Island, Ill. Because the civil courts had been open for business at the time, the Supreme Court pronounced his military trial and conviction unconstitutional and ordered him freed.'The Constitution,' the court declared in 1866, 'is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.'
Biddle wrote in his memoirs that he knew the Milligan case would be 'troublesome.' He told the justices that Milligan was 'very bad law' and should be overturned as interfering with the president's wartime powers as commander in chief. Later, though, he argued that the court could decide the saboteurs' petition 'without touching a hair of the Milligan case.' Unlike the saboteurs, Milligan had never worn an enemy uniform, never left Indiana, and never crossed over into a theater of military operations. Biddle stumbled at one point, saying Milligan was 'clearly . . . an enemy,' but Justice Felix Frankfurter rescued him by observing that Milligan was not decided 'under the enemy concept.' Biddle promptly agreed.
When the justices gathered July 30 for a late-afternoon conference, some were troubled by one key issue: FDR's failure to provide for a military review of the tribunal's decision as required by the Articles of War. As David Danelski pointed out in a 1996 study in the Journal of Supreme Court History, Chief Justice Harlan Fiske Stone tried the next morning to resolve the question by proposing language saying that the president could still comply with 'the statutory requirements' in question and suggesting that he should do so. But other justices refused to go along, and the language was dropped.
Stone took just a few minutes to announce the hurried ruling. Despite the reservations of individual justices, the court was unanimous in upholding the president and the military commission.
The generals had already started hearing final arguments in Room 5235 that Friday, July 31. Judge Advocate General Cramer, in his closing argument, asked for guilty verdicts and the death sentence for all eight defendants, although he hinted that 'one or two' who had helped the prosecution might get off more lightly.After the commission reached its decision, it sent the verdict, along with 3,000 pages of trial transcript, on a military plane to Roosevelt in Hyde Park, N.Y. FDR was reported in the New York Times to have signed a bill that same day authorizing an 'appropriate medal of honor' for J. Edgar Hoover for his role in the case, but, in fact, Congress never passed such a measure. Hoover had to settle for a July 25 letter from the president extolling his 'leadership, foresight and direction.'
The executions, which took place on August 8, weren't the end of the story. Three months later, the Supreme Court finally issued its formal opinion, justifying its earlier decision.
The court's opinion showed how loath judges are to strike down wartime measures while a war is going on. It cut back sharply on the sweep of Milligan, saying that even though the civil courts were open and even though one of the German soldiers (Haupt) was a U.S. citizen, the defendants could nonetheless be properly tried and sentenced to death by a military tribunal. It did not matter, the court said, if the men had committed no illegal acts before they were arrested. They were 'enemy belligerents . . . unlawful combatants' who had violated the law of war when they passed through defense lines 'in civilian dress and with hostile purposes.'Stone, who wrote the opinion, spent more than six weeks on the task, which he later called 'a mortification of the flesh.' He ducked the issue of the presidential proclamation's validity by saying the court had already decided, on July 31, that the military commission had jurisdiction and so it now had 'no occasion to decide contentions of the parties which are unrelated to the authority of the Commission to act.'
'Stone's purpose,' Belknap wrote in his critique, 'was not to elucidate the law, but rather to justify as best he could a dubious decision. Stone realized Haupt should have been tried for treason in a civil court.'
There were other struggles for Stone and the other justices, particularly over the question of whether a military review by the judge advocate general was required under the Articles of War before the verdict went to the president.
Alarmed at the prospect of a divided court, Justice Frankfurter, normally a stickler for the rights of criminal defendants, exhorted his fellow justices to hang tough, even sending them a heated memo titled 'F.F.'s soliloquy' that attacked the saboteurs as 'damned scoundrels.'
The heart of the memo was an imaginary conversation in which Frankfurter lectured the defendants (six of whom were dead): 'You've done enough mischief already without leaving the seeds of a bitter conflict involving the President, the courts and Congress after your bodies will be rotting in lime . . . [T]he ground on which you stand-namely the proper construction of these Articles of War-exists only in your foolish fancy.'
Lawyer-historian Belknap says Frankfurter was 'openly hostile to the accused and manifestly unwilling to afford them procedural safeguards. He cared far more that these enemies be punished quickly than that they be tried fairly.'In the end, thanks largely to Frankfurter's pleas, the court came out with a unanimous opinion that papered over the division by saying that 'the particular Articles in question, rightly construed, do not foreclose the procedure prescribed by the President.'
In the months after the ruling, Frankfurter asked Frederick Bernays Wiener, a military law expert who had been a student of his, to take a look at it. Wiener eventually concluded that the court should have dealt with the president's 'flagrant disregard' of the Articles of War on July 31 by ordering the prisoners released in a set number of days 'unless it could be shown' that a military review would be undertaken.
Within the court itself, Ex Parte Quirin left unhappy memories that grew more pronounced as the war receded. Reminded of the German saboteurs during a 1953 discussion about convicted spies Ethel and Julius Rosenberg, even Frankfurter winced. That case, he said, was 'not a happy precedent.'
Justice William Douglas said in 1962 that the case was a prime example of how 'extremely undesirable' it was to announce a decision without an opinion to back it up 'because once the search for grounds . . . is made, sometimes those grounds crumble.' Justice Hugo Black's law clerk, John P. Frank, was even more pointed in a 1958 book, saying that the court had simply 'allowed itself to be stampeded.''[I]f the judges are to run a court of law and not a butcher shop,' Frank wrote, 'the reasons for killing a man should be expressed before he is dead.'
As for Dasch and Burger, the surviving saboteurs, they were deported to Germany in 1948 after serving almost six years-a raw deal if each man, as retired FBI agent Traynor still believes, had decided on his own to foil the operation before leaving Germany.
After the war, Attorney General Thomas Clark made public a summary of the trial testimony, for the first time disclosing Dasch's role. But even then, Hoover managed to suppress the fact that Dasch had been offered a pardon if he pleaded guilty. 'Such statements, if given to the press, could certainly be used by anyone so desiring to discredit or embarrass the bureau,' Hoover told Clark in a November 1945 memo.
Dasch spent the rest of his life vainly seeking vindication. He started a wool business in Germany, but found himself a pariah in 1953 when Der Stern magazine published an article depicting him as a turncoat who had cost his comrades their lives. Reviled as a traitor in his homeland, Dasch spent years bouncing from job to job and trying to secure a pardon or at least a visa that would have allowed him to return to the United States. But Hoover, records show, had him pegged as a communist and blocked him at every turn. Dasch died in Germany in 1991.
George Lardner Jr. is a reporter on The Post's National staff. Staff writer Michael Dobbs and staff researcher Lynn Davis contributed to the article.