“That’s the man.” Cullen sounded very confident now.
Cullen ran through the rest of his testimony quickly: how Dasch had pretended to be a fisherman stranded in the fog, how he refused to go with him to the Coast Guard station, the attempt at bribery, the menacing phrase “I wouldn’t want to have to kill you.”
The defense lawyers allowed most of Cullen’s testimony to stand without objection. Royall interrupted on one point only, when Cullen talked about other coastguardsmen digging up four boxes of sabotage equipment. This was “hearsay,” Royall argued, and should be stricken from the record. Since Cullen was not present when the boxes were dug up, he had no direct knowledge of what had happened and was relying on secondhand accounts. McCoy was unimpressed. He pointed out that the presidential order establishing the commission gave extraordinary latitude to both sides to introduce any evidence that would have “probative value for a reasonable man.” As chairman of the tribunal, he would rule on what was “reasonable” or not.
It was left to the prosecution to speak for the defense. Biddle said he would call other witnesses later to establish how the boxes had been found, and there was therefore no need to rely on Cullen. He agreed that the witness’s assertion should be struck from the record. Faced with this common front, McCoy grudgingly accepted Royall’s objection. It was the first time he had ruled in favor of the defense.
Cross-examining Cullen, Royall established that the saboteurs would have had little difficulty overpowering him, as there was no one else on the beach and the Coast Guard station was not visible through the fog.
“No one was in your vicinity, no member of the Coast Guard?”
“No, sir.”
“And no one attempted to injure you in any way?”
“No, sir.”
Dasch’s defense counsel, Colonel Carl Ristine, joined in the cross-examination of Cullen. A lawyer in the office of the army inspector general, Ristine had been pressed into service at the last moment to represent Dasch, whose role in going to the FBI put him in a different category from the others. He barely had time to talk with his client or review basic court documents. Dasch would later complain that the pleasant, soft-spoken Ristine lacked forcefulness; he wished his defense had been entrusted to a man like Royall, who “fought like a lion” for his clients.12
At the end of the session, Dasch asked Ristine if he could arrange a meeting with Cullen, as he wanted to refresh his memory about events on the beach. Ristine brought the young coastguardsman over to the defendants. Although Dasch was polite and very friendly, he was also upset with Cullen for not standing up for him.
“I was supposed to kill you, but I didn’t,” he told the coastguardsman. “Now it’s your turn to help me.”13
Dasch said he had never used the phrase “I wouldn’t want to kill you” when talking to Cullen on the beach, but instead something like “You want to live, don’t you?” He asked Cullen to change his testimony. But Cullen insisted that he had clearly heard the word “kill.”
Hoover, who was seated next to Biddle at the prosecution table, was alarmed to see the government’s lead witness chatting with one of the defendants. He walked over and told them brusquely to break it up. Soldiers escorted Dasch out of the room.
PRACTICALLY NOTHING of what was happening inside room 5235 was known to journalists assigned to cover the trial. The secrecy was intensely frustrating. This was one of the biggest stories of the war, and it was taking place behind closed doors. Instead of real information, the journalists were fed irrelevant scraps, such as the detail that the prosecution team included a lawyer named George Washington, “the nearest living collateral descendant” of America’s first president.14 The most that Biddle would say when he emerged from the barricaded corridor was that the trial would continue “tomorrow.” The secrecy was not his idea, he told reporters. To say anything more, he joked, would be to risk a court-martial himself.15
The biggest excitement of the first day of the trial for the press was the fleeting appearance in the Justice Department of the twenty-four-year-old girlfriend of Herbie Haupt. The New York Post described the dark-haired Gerda Stuckmann as a “vision in white,” wearing a white suit, white shoes, and a white turban. Gerda had given reporters her version of her relationship with Herbie, claiming she had turned down his offer of marriage. Underneath the headline “Widow Jilts Haupt, One of 8 Seized Spies,” the Washington Post quoted Gerda as saying, “He always appeared to be a gentleman, interested in reading and music. He played the piano and was especially fond of the music of Schubert. I knew he liked Hitler’s policies, but that was a couple of years ago and we weren’t in the war. Now I am ashamed of him and don’t want anything more to do with him.”16
In the absence of hard facts, reporters ran with anything they could. Nolen Bulloch of the Washington Times-Herald provided his readers with a front-page description of the scene inside the D.C. jail as the saboteurs arrived. An FBI investigation later established that the reporter was “serving a short sentence in the District jail for drunkenness” at the time and was therefore “in a position to observe what was going on and obtain a scoop.”17
Hoover was so worried about leaks that he ordered all his agents to refrain from discussing the trial in restaurants or other public places. 18 One source of his concern was a memo from a deaf Justice Department employee who reported that he had been able to gather information about the trial by reading the lips of his fellow agents as they discussed the case in the office cafeteria.
Just how much information should be relayed to the press was the subject of heated arguments within the government. On June 13, the day Dasch and his men landed at Amagansett, the president had responded to complaints by journalists about the lack of reliable information from the army by setting up the Office of War Information (OWI) under Elmer Davis, a former journalist and well-known radio commentator. The media saw the saboteur case as the first test of the credibility of the government’s new information chief.
Davis wanted to be as open as possible with the press, while preserving necessary military secrecy. He felt “Americans are entitled to know everything that the enemy knows; that the better they understand what this war is about, the harder they will work and fight to win it.” 19 This led him to favor some press coverage of the sabotage trial, either by a small group of pool reporters or a member of his staff. All reports would be subject to military censorship, thus ensuring that nothing was released that could be helpful to the enemy. It was unreasonable, Davis thought, to expect newspaper editors and reporters to agree to voluntary censorship if they were not given some information about this most sensational of trials.
From the army’s point of view, any information about the trial might be damaging, as it would provide clues to American intelligence methods and reveal flaws in U.S. coastal defenses. The Germans should be led to believe that the coastline was impregnable, which would deter them from mounting future sabotage missions. The military argued that there was no satisfactory way of editing the testimony for public release without disclosing sensitive information, either directly or by omission.
Stimson, in particular, was scathing about civilian meddling in military matters, and refused to permit an OWI representative to attend the tribunal hearings. When a reporter asked whether Davis would be supervising the release of military communiqués, he inquired with sarcasm, “Is Mr. Davis an educated military officer?”20
The reporter remarked that the OWI director might be considered “one of those civilian generals.” “Yes, there are many of them,” the secretary shot back.
BY THE second day of the trial, Roosevelt had become exasperated by all the squabbles arising from the case. The FBI was at loggerheads with the navy and the Secret Service; the secretary of war could not stand the attorney general; the press was clamoring for access to the military tribunal. “I am going to go over to my office and will spend the day blowing up various people,” the president told Daisy Suckley after breakfast at the White Hou
se.21
He had summoned Davis and Stimson to adjudicate their dispute about publicity for the trial. His press secretary, Steve Early, sided with Davis. At first, Roosevelt had also been inclined to allow some limited reporting of the trial, but Stimson had invoked national security. The president now told Davis that reporters should not be permitted to attend the trial. Instead the commission would issue communiqués through OWI.
This was viewed as a concession to the media—until the first communiqué appeared. It announced merely that the military commission had convened in the presence of the defendants and their lawyers, and continued: “The sessions will be closed, necessarily so, due to the nature of the testimony, which involves the security of the United States and the lives of its soldiers, sailors and citizens.” Subsequent communiqués were similarly terse.
As Stimson emerged from the Oval Office, he found himself besieged by “self-seeking journalists trying to make trouble.”22 He later complained to his diary that the press had “a vested interest in breaking down secrecy in order to sell more papers.” The secretary of war felt the media were picking on him because of his insistence on the need for confidentiality. He blamed Biddle for the unpleasantness.
The fault of the whole matter lies directly on the doorstep of the Attorney General. It was he who in the first place told me of the absolute necessity for secrecy in regard to the evidence. He told me of the particular evidence which was especially dangerous to have come out and said that he had told it to no one else. But immediately after he had taken this attitude and imposed on me the necessity for defending the secrecy of the court, he has wavered under the impact of the assaults of the press and has been rushing into publicity himself. His subordinate, Hoover, gave before the trial elaborate interviews as to the facts and Biddle himself has done the same thing in press conferences. This has made it very unfair and very hard on me.
For his part, Biddle felt the censorship was “overdone.” 23 The Germans must have known “the substance of the evidence,” and there was “little if anything that had to be concealed, except the confessions of Dasch and Peter Burger.” But opinion polls suggested that the American public sided overwhelmingly with Stimson and the military on the need for secrecy.24 Of those questioned in a Princeton University study, 69 percent said the tribunal proceedings “should be kept secret,” while only 27 percent felt that reporters should be permitted to attend.
Stimson did make a couple of minor concessions. He permitted U.S. Army Signal Corps photographs of the hearing to be distributed to the press. He also allowed a group of twelve reporters to visit room 5235 during a break in the hearing. The reporters were not permitted to talk to anyone, but were free to report what they saw. At least they were getting their first glimpse of the saboteurs.25 The effect was deflating.
“Instantaneous reaction was that the mysterious Hitler agents were no Nazi supermen but merely a group of most ordinary looking individuals,” reported Lewis Wood of the New York Times. “Not one of these men charged with a desperate plot suggested in the slightest a burly booted Storm Trooper, a brutal U-boat captain or, indeed, anything resembling the vital, ruthless blond German glorified by Hitler. On the contrary, they were most inconspicuous physically.”
Dillard Stokes of the Washington Post reported that “the spies flinched” as their names were read out by General Cox for the benefit of the journalists. Dasch “sat tensely forward on his chair and took notes on a pad on his knee.” Kerling “gave the reporters a long, cold, level stare.” Neubauer clasped his hands “so tightly together that his knuckles were white.” The unshaven Haupt “chewed gum vigorously and his mouth curled into a sneer.” Quirin’s “wide-set eyes glared.” Thiel returned “stare for stare as long as he was under scrutiny.” Heinck “did not want to be seen at all and crouched behind a pillar until General Cox ordered him to lean forward.”
The reporters were also allowed to inspect objects on the evidence table, which included dirty socks and oil-stained dungarees, a pair of German army boots, a “fatigue cap with a swastika emblem,” spades, and other articles, all neatly tagged with green labels. After fifteen minutes, the journalists were escorted from the room, and the trial resumed.
INSIDE ROOM 5235, the trial was turning into a contest of gladiators. Both Biddle and Royall were experienced trial lawyers. They had both studied law at Harvard, and they were both physically imposing. Biddle was six feet two, Royall a towering six feet five. In other respects, however, they were very different, both physically and in the way they approached the case. Biddle wore a neatly cropped mustache in the middle of his round face, with a few strands of carefully combed hair struggling to conceal a bald pate. With his air of noblesse oblige, dazzling white suit, and ever-present pocket handkerchief, Biddle could have been a European dandy strolling the boulevards of Paris. Royall, by contrast, dressed in a loosely fitting military uniform. He had a soft, pleasant voice tinged by a deepchested North Carolina drawl, and a country boy personality that disguised an intensely competitive nature. He was better prepared and more incisive than Biddle, with an ability to go quickly to the heart of a complicated legal argument.
Although he had the more effective courtroom manner, Royall also had the weaker case. The defense strategy rested on exploiting a series of legal technicalities and procedural irregularities, which might have made an impression on a civilian court or even a regular court-martial, but were largely irrelevant to a military tribunal that made up its own rules. Under the “reasonable man” standard decreed by the president, the judges were not even bound by the rules of evidence outlined in the courts-martial manual. Biddle made the most of his extraordinary latitude to introduce evidence that would have been inadmissible in a civilian trial.
Key to the prosecution’s case were the “confessions” elicited from the saboteurs by the FBI, in which each defendant incriminated not only himself but the others. Royall argued in vain that the courts-martial manual forbade the use of such pretrial statements against other members of an alleged conspiracy. Biddle dismissed the defense argument as an irrelevant technicality. Royall then rose to invoke the centuries-old legal traditions of the Anglo-Saxon world, which “stood in sharp contrast” to the legal system of totalitarian states like Nazi Germany. To rely on “the unsworn, unexamined, and uninvestigated” declaration of one defendant as evidence against the remaining seven, Royall said, would undermine the most basic principles of American justice. His passionate rhetoric notwithstanding, the judges sided with Biddle and declared the evidence admissible.
In fact, Biddle was selective in his use of confessions. He opposed the reading of Dasch’s 254-page statement into the record on the grounds that it was superfluous and “self-serving.” He preferred to have an FBI agent summarize the document. Seated by the wall, Dasch could scarcely restrain himself. He felt the statement would demonstrate that he had fully cooperated with the American authorities in uncovering the sabotage plot. Ristine relayed to the tribunal Dasch’s demand that the whole document be read aloud, adding plaintively, “It is his freedom that is at stake, not mine.” This time, the judges agreed with the defense. Since the statement was so long, the task of reading it aloud was assigned to relay teams of junior lawyers and FBI agents. It took three days of rapid-fire recitation to complete the job.
Ristine did not help his client’s case with his cross-examination of Duane Traynor, the FBI agent who had spent five days interrogating Dasch after he first came to Washington. At first, Traynor told the commission, he had been impressed by Dasch’s “sincerity and truthfulness,” but came to have doubts about his informant. He cited Dasch’s erratic behavior in first insisting that nothing be said about his role in going to the FBI because he wanted to protect his parents from retribution by the Nazis and later deciding that he wanted the world to know about his actions. There were times, Traynor added, when Dasch seemed to be deliberately holding back information.
The reading of confessions was occasionally interrupted by demons
trations of sabotage paraphernalia. The FBI explosives expert, Donald Parsons, invited the judges to marvel at the ingenuity of the bomb-making equipment recovered from the beaches of Amagansett and Ponte Vedra. Sometimes, his enthusiasm ran away with him, as when he offered to assemble an “American fountain pen” set cunningly designed to conceal a delay mechanism for detonating explosives. “I think it had better be unassembled, so as to put it in a safe condition,” a tribunal member commented dryly.
A few days later, another FBI agent demonstrated the system of secret writing used by the saboteurs. He produced the white handkerchief confiscated from Dasch, stretched it tautly over a frame, and exposed it to an uncorked bottle of ammonium hydroxide.
“Can the commission see?” Biddle asked, as red letters appeared on the handkerchief.
“The commission can see and smell,” replied McCoy.
Biddle wound up his case with a plea for a commonsense approach to the evidence, ignoring the legal quibbles raised by the defense. “These men, not having an opportunity to talk it over, on the whole made confessions entirely bearing out what each other said. Dasch supports Burger, Burger supports Kerling and so on, down the line.” He compared the powers of the military commission to administrative tribunals such as the Securities and Exchange Commission that were not bound by the hearsay rule. It was difficult to conceive, he said, that “a body of reasonable men” would reject confessions that bore “the obvious marks of truthfulness.”
This gave Royall an opening. The prosecution, he told the judges, was trying to apply the standards of “a dollar-and-cents controversy” to a capital case. “If that is the law, we are losing mighty near all of our vaunted system of criminal justice.” The judges were unimpressed by his eloquence. Shortly before noon on July 20, McCoy ruled that the confessions of the defendants were valid evidence “for all purposes.”