THE ESTABLISHMENT of a military tribunal meant that the saboteurs would have to be transferred to the custody of the army. After some discussion with Hoover and Biddle, army leaders decided that the Justice Department building in Washington offered the best location for the trial, including security, easy access, and plenty of space. In between court sessions, the prisoners would be held at the Washington, D.C., jail, one wing of which was transferred to the authority of the army.
Stimson summoned the provost marshal of the Military District of Washington, Brigadier General Albert Cox, to make the necessary arrangements. “In the last war a man named Grover Cleveland Bergdoll got away,” Stimson growled.41 “In this war nobody is going to get away. See Edgar Hoover and arrange for the transfer of the prisoners.”
The FBI director went to New York to supervise arrangements and get a firsthand glimpse of at least some of the saboteurs. He ignored Dasch, who was still bitter about the way he was being treated, but spent ten minutes with Peter Burger in his cell. When Hoover called on him, Burger had just finished a ham and egg sandwich, and was lying on his bed reading a historical novel set in the time of the American Revolution. 42 His whole demeanor was one of passive resignation. He remained expressionless as one of Hoover’s aides formally charged him with attempted sabotage and violating the rules of war, crimes that carried the death penalty. Burger had been very helpful throughout the investigation, returning with FBI agents to Amagansett to point out things they might have missed on the beach. The plan was to rely on his evidence as much as possible at the trial, thereby avoiding emotional outbursts from the “wild” and unpredictable Dasch.
Late that evening, agents escorted all eight saboteurs in handcuffs to Pennsylvania Station, where an entire carriage had been reserved for them on the overnight train to Washington. At 6:55 the following morning, the train arrived at Union Station, where the prisoners were formally handed over to the army.
Another train was traveling toward Washington on the same railroad track, an hour or so behind the train carrying the saboteurs. Aboard the second train was the president, returning to the capital after a week at Hyde Park. For Roosevelt’s devoted companion, Daisy Suckley, it had become a familiar ritual. She noted in her diary that the president’s black Scottish terrier, Fala, jumped on the sofa next to FDR and snuggled up beside him. Orange juice and “delicious canapés” were served. Then “the usual bad night listening to the wheels go round.”43 At 8:30, everybody appeared for breakfast in Roosevelt’s stateroom. “The president said he had a bad night.”
“A tense Fourth of July,” Hassett noted in his diary. “War not going well.”
CHAPTER TWELVE
MILITARY TRIBUNAL (JULY 6–28)
KENNETH C. ROYALL had been working in the legal affairs office of the War Department for less than a month when a White House messenger hand-delivered an order direct from President Roosevelt. The message instructed him to serve as defense counsel for the German saboteurs arrested by the FBI a few days before. Attached to the order was the presidential proclamation denying the defendants access to civilian courts.
As he mulled over the message, Royall quickly realized that he was caught in a quandary. He felt bound by the Manual for Courts-Martial, which stated that defense counsel “will guard the interests of the accused by all honorable and legitimate means known to law.” 1 In order to defend his new clients properly, he knew he had to do everything in his power to get their case transferred to the civil courts. But this meant defying the wishes of his commander in chief, who had expressly forbidden any such move. After a brilliant career that included editing the Harvard Law Review and serving as a trial lawyer in his native North Carolina, he had joined the army as a colonel. He was now confronted with a choice between conscience and discipline.
He talked the matter over with the other military lawyer named in Roosevelt’s order as his co-counsel. Unlike the forty-eight-year-old Royall, Colonel Cassius M. Dowell was a regular army officer who had risen from the rank of private and was nearing the end of a spotless if unexceptional military career. He had little trial experience, but was an expert on court-martial procedures, about which he had written a book. Dowell listened carefully as Royall argued they had a duty to ensure that their clients got as fair a trial as possible. It was difficult to square this with a closed military tribunal with few of the usual procedural safeguards for the accused.
“So what do we do about it?” the older man asked. 2
Royall was in favor of writing a letter to the president, asking him to waive the restriction on appealing to the regular courts. He said he was prepared to sign the letter alone, as he did not want to get Dowell into trouble with the army. Since Royall would be returning to civilian life after the war, his own situation was different. To be kicked out of the army “for defending a client, no matter who the client was, would be about the best advertisement I could get,” he joked.
Dowell, however, wanted to sign the letter as well. As drafted by Royall, the missive was polite but firm, questioning the “constitutionality” of the order denying their clients “any civilian remedy.” The defense attorneys requested Roosevelt’s authorization to mount a full legal challenge to his own presidential proclamation.3
The ball was now back in the president’s court. Short of backing down and withdrawing his order, he had three choices. He could summarily reject the defense counsels’ request. But as Biddle pointed out in a memorandum, this might “give the public the impression that the prisoners are not being given a fair trial.”4 He could authorize an appeal to the Supreme Court. Or, finally, he could say nothing, leaving the two colonels to wrestle with their consciences alone.
He decided to keep silent. He had his secretary, Marvin McIntyre, inform the colonels that the July 2 proclamation remained valid but that they should decide for themselves how to perform their duties.
“Is there anything else we can do?” Dowell asked Royall after the telephone call from McIntyre.
“I don’t know but one thing.”
“What’s that?”
“Write another letter.”
So they wrote another letter to the president, announcing their intention to challenge “the constitutionality and validity” of his order establishing military tribunals “at the appropriate time.” They concluded with a curt, one-sentence paragraph: “Unless ordered otherwise, we will act accordingly.”
The tribunal hearing was scheduled to begin the following day. Since they never heard back from the White House, the two colonels proceeded to “act accordingly.” First they had to get to know their new clients.
GENERAL COX had arranged for his prisoners to be held in the empty women’s section of the District of Columbia jail. Strict measures were taken to ensure that they were kept isolated from the outside world and from one another. The cell on either side of each prisoner was kept vacant so they would not be able to communicate through the wall. Guards watched them constantly through peepholes, and their cell lights were never dimmed. In order to prevent any attempts at suicide, they were given paper plates and cardboard spoons with their meals.
Pretrial meetings with defense attorneys took place in a reception area down the corridor from the cells. The saboteurs were isolated from the outside world, and had little idea what kind of case the FBI had been able to build against them. The defense lawyers did their best to explain the charges of espionage and sabotage and go over each one’s story, looking for weaknesses in the prosecution’s case.
Excitement mounted outside the District jail on the morning of Wednesday, July 8, as the army prepared to transport the saboteurs to the Justice Department, where the military proceedings would take place. This was the first time most Americans had a chance to see the Nazi enemy up close. It was quite a show. As the Washington Times-Herald reported breathlessly that afternoon, “All the drama, action and thrills that go with war, death and intrigue were written into a rapid-moving two hours today as eight Nazi spies were rushed from th
e Army-guarded District Jail to the Department of Justice building.”5
Steel-helmeted guards with fixed bayonets had been posted at the gates of the jail since early morning. At 8:40 a.m., six policemen on motorcycles roared out of the gates, followed by a car bearing General Cox. Then an army transport truck full of soldiers, sirens blaring, machine guns pointed in all directions. Next, two black marshal’s vans, with soldiers mounted on the running boards, followed by another transport truck and more motorcycle outriders.
As the procession sped through Washington, from the Anacostia River to Independence Avenue, and across the Mall to Constitution Avenue, shouts of “There go the spies” and “Nazi rats” went up from the thousands of office workers lining the streets. From Constitution, the cavalcade turned right onto Ninth Street, and then made a left through the heavy iron gates of the Justice Department building, where Dasch had come to make his confession less than three weeks before.
As they sat in handcuffs inside the black vans, the eight saboteurs were shocked by the ferocity of the public reaction.6 Heinrich Heinck would later complain to his wife that “we are watched more carefully than vicious criminals. Handcuffs, machine guns, and so forth. The sirens scream loudly when we ride through Washington. You know what I think of America but now my dream and ours has been destroyed.” Eddie Kerling railed against American hypocrisy. When men like Nathan Hale in the Revolutionary War or Douglas MacArthur in the battle of Vera Cruz risked their lives going behind enemy lines, he wrote his friend Miriam Preston, they were hailed as “heroes.” But Germans on a similar mission for their country were denounced as “rats.”
The vans deposited the prisoners in the Justice Department basement, from which they were taken, by elevator, to a heavily guarded corridor on the fifth floor, screened from nearby offices by boarded-up glass doors. After reviewing several possible sites for a closed military trial, Hoover had persuaded the army that this one offered “the best set-up as far as safety and comfort of any in Washington.”7 The corridor could be sealed off from the rest of the building. During noon recess, the prisoners could be kept in cells in the basement. The hearing itself would take place in a long, narrow room previously used as a classroom for new FBI recruits. Everyone who entered room 5235 required a pass personally signed by both Hoover and Cox.
At precisely 10 a.m., the chairman of the tribunal, Major General Frank R. McCoy, gaveled the session to order, declaring, “The Commission is now open for the trial of such persons as may be brought before it.”
“Bring in the prisoners,” ordered General Cox. 8
Uniformed soldiers escorted the saboteurs to their seats along the wall closest to the corridor, between square pillars. On the wall opposite, heavy blackout curtains had been hung on the windows overlooking the courtyard of the building, preventing any daylight from filtering into the room. McCoy and his six colleagues—three major generals and three brigadier generals—sat on a slightly raised podium to the left of the accused, underneath an American flag and a green velvet drape that concealed a motion picture screen. Two small tables, for exhibits and court reporters, were placed directly in front of the judges, along with a chair for witnesses. The rest of the room, which measured about 100 by 20 feet, was taken up by two long tables, one for the prosecution, the other for the defense. The bright artificial lighting and sparse government-issue furniture gave the room an impersonal, even garish feeling.
While in jail, the prisoners wore striped pajamas, but they were allowed to change into their civilian clothes for their appearances before the tribunal. On trial days, they were shaved by a prison barber, and got dressed in their new double-breasted suits, snap-brim hats, two-tone shoes, and other fashionable items they had bought on shopping expeditions in New York, Chicago, and Jacksonville. As soon as they returned to the jail, they had to change back into their pajamas.
Government lawyers had combed the archives to find a precedent for a military commission, as opposed to the much more common court-martial, which was the way the military administered justice to its own members. They discovered that Andrew Jackson had used military commissions during the War of 1812, when he was in command of American forces at New Orleans. Military tribunals had been used frequently by both sides in the Civil War to punish such offenses as blockade-running, engaging in partisan warfare, or unauthorized trading with the enemy. In 1865, a military commission convicted Mary Surratt of conspiring with John Wilkes Booth to assassinate Abraham Lincoln, and sentenced her to death by hanging. After the Civil War, military commissions fell into disfavor in the continental United States, although they were reintroduced in Hawaii after Pearl Harbor.
GENERAL McCOY had hardly begun to swear in the officers of the court when Royall rose to challenge the authority of the military commission, preparing the ground for a later appeal to the Supreme Court. He described the president’s proclamation setting up the tribunal as “invalid and unconstitutional,” and quoted directly from Ex parte Milligan. As long as civil courts were “open in the territory in which we are now located,” they should have jurisdiction.
Biddle quickly rose to his feet. Dressed in a white linen suit and white dress shoes, the attorney general stood out sharply against the background of khaki uniforms. Sketching the government’s case in the simplest possible terms, he said the defendants were in “exactly and precisely the same position as armed forces invading this country.” As such, they had no “civil rights” worth considering.
After a long discussion about the proper role of military tribunals, McCoy called a recess. He and his fellow judges excused themselves for half an hour, “about the time it takes to smoke a good cigar,” in the phrase of Lloyd Cutler, a junior member of the prosecution team. 9 On his return, the general announced curtly, “The Commission does not sustain the objection of the defense. Proceed.”
A distinguished soldier-diplomat, McCoy was the epitome of the “reasonable man” standard established by the president for the conduct of the tribunal. Like most of his fellow judges, he had no legal background. But he had impeccable military credentials. He served in the Spanish-American War with Theodore Roosevelt and was wounded in the Rough Riders’ charge up San Juan Hill. TR later described his protégé as “the best soldier I ever laid eyes on.”10 Determined to prevent the saboteur case from getting bogged down in technical legal wrangling, McCoy even objected to Royall’s use of the term “court” to describe the proceedings.
“This is a military commission,” he lectured. “Please use that term.”
An officer proceeded to read the charges against the eight saboteurs, beginning with “Charge One: Violation of the Law of War.” The defendants were “enemies of the United States acting for and on behalf of the German Reich,” who had passed through American defense lines “in civilian dress contrary to the law of war . . . for the purpose of committing acts of sabotage, espionage, and other hostile acts.” They were also charged with violating the eighty-first and eighty-second Articles of War. The first of these articles dealt with “relieving or attempting to relieve enemies of the United States with arms, munitions, supplies, money, and other things”; the second punished “lurking or acting as spies in or about the fortifications, posts and encampments of the armies of the United States.” The final charge was criminal conspiracy.
As they listened to the accusations, Dasch and the other saboteurs finally understood the seriousness of their situations. There could now be no doubt in their minds: if convicted, they faced the death penalty.
The defense lawyers objected that the accusation of “relieving” enemies of the United States was designed to be used against U.S. citizens who aided the enemy. Furthermore, their clients had never “lurked” about U.S. army encampments. McCoy overruled the objections in his usual brisk manner, causing Royall, who had been born and raised in the South, to think of an old saying from Reconstruction days: “Give the nigger a fair trial and hang him quick.”11
Each defendant was required to respond to the c
harges, beginning in alphabetical order with Burger. They stood up one after another to plead “not guilty” to all charges. The trial proper could now get under way.
THE GOVERNMENT’S first witness was John Cullen, the coastguardsman who ran into the saboteurs the night they landed on Amagansett Beach, newly promoted to coxswain from seaman second class for his vigilance. After leading Cullen through his story, Biddle asked if he recognized the man who had walked toward him through the fog.
“I think so, sir.”
“Will you stand up and identify him, if you see him in court? Stand up please. Now do you see the man?”
“Yes, sir.”
“Which is he?”
“Right here, sir.”
“Go and point to the man you have in mind. It won’t hurt you. Just go and point at him. Point at him. Which is he?”
From the witness chair, Cullen walked over to the defendants, pointing at Dasch. In his well-cut suit and highly polished shoes, the defendant looked very different from his scruffy appearance on the beach, when he was dressed in sodden pants and a black fedora. But he was easy to recognize from the gray streak running through his hair. To make sure there would be no mistake, FBI agents had taken Cullen to the D.C. jail the evening before. He had stood in front of each cell door, examining the saboteurs in turn, before picking out the man who had introduced himself as George John Davis.
Biddle asked Dasch to stand up. He did so, taking a couple of steps toward Cullen, so they were barely inches apart.
“Is that the man you remember seeing?” Biddle asked the witness.
Cullen wanted to make doubly sure. He asked the accused to say “a few words.” Dasch obliged with the first phrase that came into his head: “What is your name?”