Saboteurs
Winding up for the defense, Royall had the tricky task of assuring the judges that he had complete confidence in their “wisdom and fairness” only hours after pleading with the Supreme Court to declare the military tribunal unconstitutional. Implicitly recognizing that the commission was likely to find his clients guilty, he sought to spare them from the death penalty. His main argument was that the defendants “did not blow anything up.” The law had always drawn a clear distinction between intention and accomplishment, Royall noted. A man who bought a pistol “with intent to kill” would be fined no more than $50 “in most jurisdictions.”
It was important, Royall insisted, for America to remain true to its own system of justice, even at times of greatest stress and crisis. “We want to win this war, and we are going to win it, but we do not want to win it by throwing away everything we are fighting for.”
The defense arguments were cut short by the need to return to the Supreme Court for the habeas corpus decision. At 11:40 a.m., McCoy declared a recess to allow both sides to keep their noon appointment in the shiny marble palace on Capitol Hill.
AS THEY mulled over Ex parte Quirin in the conference room, the justices were unanimous in concluding that they should do nothing that would interfere with the war effort. This was not the time to undermine the authority of the president. On the other hand, they were reluctant to overturn Milligan, as the attorney general seemed to want.
Although they agreed on where they should end up, the justices were divided about how to get there. Some of them, like Frankfurter, had little patience for abstract constitutional debates at a time when civilization hung by a thread. Others, like Roberts, were dubious about the legality of the president’s proclamation denying the saboteurs access to civilian courts. 20 If they were going to preserve a public show of unanimity, they had to find a way of papering over these deep-seated differences.
As chief justice, Stone was a stickler for legal procedures and judicial independence. A few weeks earlier, he had turned down a request by Roosevelt to chair a government inquiry into the rubber crisis precisely because of his fervent belief in the separation of powers. While agreeing with much of what Biddle had to say about the nature of modern war, Stone was also impressed by some of the points raised by Royall. In particular, he felt that the government should abide by the appeals procedures for military courts outlined in the Articles of War. In order to draw attention to his concerns, he proposed including the following paragraph in the draft opinion:
Even if petitioners are correct in their contention that Articles of War 46 and 501⁄2 require the President, before his action on the judgment or sentence of the Commission, to submit the record to his staff Judge Advocate or the Judge Advocate General of the Army and even if that question be reviewable by the courts, nothing in the President’s order of July 2, 1942, forecloses his compliance with such requirement and this Court will not assume in advance that the President would fail to conform his action to the statutory requirements.21
Translated into plain English, this was a way of serving notice on the president that he should comply with the Articles of War. But when Stone circulated the language at conference on Friday morning, some of his colleagues raised objections, on the grounds that it might cast doubt on the president’s powers. As the justices debated the question, the hands on the clock on the mantelpiece in the conference room crept around to noon.
There was no time to resolve the dispute before the court announced its decision. Reluctantly, Stone agreed to omit the controversial paragraph. A couple of minutes later, he and the other justices filed back into the great hall of the Supreme Court. The chief justice picked up two typewritten sheets and proceeded to read a “per curiam” decision, meaning that it was a consensus document on behalf of the entire court. Interrupted briefly by the roar of a low-flying airplane, he announced that the justices had concluded that the military commission was “lawfully constituted” and that the “petitioners are held in lawful custody.”22
“The motions for leave to file petitions for writs of habeas corpus are denied. The orders of the District Court are affirmed.”
Surrounded by journalists on the steps of the court, Biddle pronounced himself “elated.” A disappointed Royall would say only, “The Court has acted.”23 In fact, the Supreme Court had acted in a very curious fashion. The justices had agreed on a verdict without agreeing on the reasons for the verdict, a reversal of normal procedure that would cause Stone and his colleagues great agonizing in the months ahead.
“I WANT to talk briefly about the individual cases,” Royall told the military judges, when the commission resumed work later that afternoon. He ran down the list of his clients, trying to say something exculpatory about each one. Kerling had “a triangular matrimonial difficulty” that helped explain why he was anxious to get back to the United States. His conflicting motives were sufficient to “raise a doubt” about whether he would have gone ahead with the sabotage plan. Heinck was just “a fellow who followed orders.” Although Quirin had displayed greater initiative than Heinck, he too had done nothing to carry out the plan. Neubauer had been severely wounded on the eastern front, and “was hardly himself when he got into this thing.” Thiel floated through life with little grasp of what was going on. Royall used a North Carolina mountain expression to describe his dim-witted client: a man who spent his time “chinking wood, to fill in between the chinks of log cabins.”
Before Royall could speak about his two other clients, Burger and Haupt, Ristine rose to urge the judges to acquit Dasch on all charges. He dismissed the prosecution’s argument that Dasch only went to the FBI because he was afraid of getting caught after his encounter with the Coast Guard on Amagansett Beach. Far from being afraid of Cullen, Ristine said, Dasch had allowed him to live rather than killing him in accordance with his orders. Everything that Dasch did was consistent with a “pre-arranged, thought-out plan on his part to come back to the United States and expose the whole thing and not carry it out.”
Ristine dismissed the prosecution’s complaint that Dasch had failed to report the sabotage plot to the proper authorities for six whole days, arguing that it took his client that long to calm his nerves. He reminded the judges that Dasch had telephoned the FBI in New York the day after he landed: he could hardly be blamed for the Bureau’s failure to follow up on this call. Ristine concluded by recalling the FBI’s offer of a presidential pardon for Dasch in return for a guilty plea. If the FBI believed that Dasch deserved a pardon, the military commission should too.
It was not until Saturday morning that Royall was able to wind up the case for the defense. In talking about Haupt, he emphasized his youth and thoughtlessness. Haupt, he told the commission, was a naïve American boy who got into trouble with a girl, and skipped out of town. “That is a bad thing to do, but it happens every day.” Through a chain of bizarre circumstances, Haupt had ended up in Nazi Germany, where he became desperately homesick. “He tried to get back to America, and this was the only way in which he could do so.” Once back in America, he had moved around quite openly. The only reason he did not immediately report to the FBI was that he was waiting for everyone to get together on July 6.
Turning finally to Burger, Royall reminded the commission that his client had cooperated voluntarily with the FBI, which never once challenged any of his statements. His mistreatment by the Gestapo suggested a compelling motive to leave Germany and secure his revenge by wrecking Operation Pastorius. “Can it be that Burger is in a situation where he can be put to death by Germany for being a traitor, as he certainly was, and put to death by us as a traitor?” he asked the commission. “That is an impossible situation.”
The last word went to the prosecution. Judge Advocate General Cramer reacted scornfully to the claim that at least some of the saboteurs viewed Operation Pastorius as a means of escaping Nazi Germany. Perhaps the defendants had been charged with the wrong offense, Cramer suggested sarcastically. If the defense version of events was to be b
elieved, the charges should have been amended to read something like “In that, Burger and all the rest of these defendants, with intent to defraud the German government, did, in Quenz, Germany, in or about the month of May, 1942, unlawfully pretend to said German government that they, well knowing the said pretenses were false, and by means thereof, were saboteurs, and by means thereof did fraudulently obtain from the said German government the sum of $180,000 in money, four or eight boxes full of explosives, and a free trip across the Atlantic in a submarine.”
After a pause for laughter, Cramer proceeded to argue that death sentences for all the defendants were the best way of deterring future groups of saboteurs. The defense case rested on the assumption that Walter Kappe, the mastermind of the sabotage operation, was so stupid that he selected only incompetent “morons” to take part in Operation Pastorius. But Kappe was “not the dumbbell that these men would have you believe.” On the contrary, the former Bund chief was “smart” and “knew his men.”
Cramer hinted that “one or two of the defendants,” presumably Dasch and Burger, might benefit from presidential clemency. But this was not a matter for the tribunal to decide, as it had no way of knowing how much assistance each man had given to the FBI. The only question for the military commission was whether the defendants were guilty.
At 2:25 p.m., McCoy declared the trial over. The verdict would be sealed and sent to the president.
GEORGE DASCH was a very bitter man. He considered the charges against him “crazy” and the concluding remarks of Cramer “grossly unjust.”24 The tribunal, he would later write, was “not my idea of an honest American trial.” But what upset him most was his treatment by the FBI. He thought he would be hailed as a hero for betraying Operation Pastorius; instead he was shunned and ignored.
As Dasch was escorted out of room 5235 for the Saturday lunchtime recess, he turned to an FBI agent and asked whether Director Hoover would be back. The agent refused to provide any information. As the agent later reported to Hoover, Dasch “stated before the guards took him away that he had risked his life to give a full story to the Director and had been here for over a month and the Director had not even spoken to him and he wanted to tell the Director thank you. He was most sarcastic.” 25
Melodramatically, Dasch told his defense counsel that he wanted to be taken out and shot if found guilty.
Most of the other saboteurs reserved their anger for Dasch rather than the FBI. It was against regulations for the prisoners to communicate with the outside world during the trial; they were not even meant to have access to writing materials while in prison. They were, however, permitted to make notes during the trial, and some used the opportunity to write hastily scribbled letters to friends and family, accusing Dasch of betrayal.
“Dasch and Burger . . . told everything,” Kerling complained in a note written on the final day of the trial.26 “All other six men stood up well but could not deny anything in face of statements of traitors.” Kerling persuaded one of the guards to mail the letter to his best friend in Germany after the war was over, but it was intercepted by the FBI. Although Kerling said he had been “treated very good” by his captors, he had no illusion about what would happen to him. “Am waiting for the sentence of court, which propably [sic] is death . . . Have done my duty and given my life for our country.”
Heinrich Heinck wrote his wife Anna and eight-month-old son Harm back in Germany that as a result of the treachery of Dasch and Burger, “it was a small matter for the FBI—American Gestapo—to arrest us.” Unlike Kerling, Heinck still felt “some hope,” even though he was prepared for the worst. “Dear Anna, you are the only one who must suffer, and Harm, who will probably miss his Papa very much. Should I be executed or given life imprisonment, darling, I would not expect you to remain faithful to me. It would probably be better if Harm had another Papa. I leave that to you.”27 “Please don’t judge me too hard,” Herbie Haupt told his parents in a penciled note.28 “While I was in Germany I worried night and day wondering how you were getting along . . . I tried to get work in Germany but I could not, and when they told me that they had chosen me to go back to the United States you don’t know how happy I was. I counted the days and hours until I could see you again and probably help you . . . Dear Mother, I never had any bad intentions. I did not know what a grave offense it is to come here the way I did in wartime. They are treating me very well here, as good as can be expected.
“Dear Mother and Father, whatever happens to me, always remember that I love you more than anything in the world. May God protect you, my loved ones, until we see each other again, wherever that may be. Love, your son, Herbie.”
ROYALL AND DOWELL had done everything they could for their clients under the Articles of War, fighting all the way to the Supreme Court. The only recourse left was to appeal directly to the president.
They drafted two more appeals. The first was on technical grounds, requesting an independent review of the military commission proceedings, as stipulated by the Articles of War. They reminded Roosevelt that the Supreme Court had yet to issue its final opinion. It was quite possible that the Court would agree with the defense that a review was mandatory. If the president refused a review, the prisoners would have a legal basis for challenging the validity of the commission proceedings.
Their second appeal was on the grounds of the practical conduct of the war. Royall and Dowell noted that Nazi Germany had not imposed “the extreme penalty” on Englishmen captured in similar circumstances behind German lines. Writing on behalf of the defendants, they told the president that ordering capital punishment in the present case would be “unfair,” as well as against the interests of American soldiers and sailors, “many of whom will doubtless engage in similar missions, in civilian clothes or disguise, in German territory during the war.”
Both lawyers had attracted public criticism for their vigorous defense of their unpopular clients. Royall, in particular, came under harsh attack. An editorial in the Charlotte News, in his home state of North Carolina, described him as a “braying ass,” and suggested he be put on trial himself. A California woman sent him a dime so that one of his clients could buy a cigar to celebrate his “mockery” of the United States. 29
At the same time, the defense team also won plaudits from some unlikely quarters. While the trial was still going on, FDR’s secretary, Marvin McIntyre, remarked to Hoover that the defense lawyers were showing “a lot of courage.”30 Soon after the Supreme Court hearing, Royall received a letter from his old Harvard law professor, Justice Frankfurter, congratulating him on the “admirable manner in which you discharged the difficult and uncongenial task entrusted to you by the Commander-in-Chief.” “You were in the service of both War and Law,” Frankfurter wrote, “and you served both with distinguished fidelity.”31 Justice Jackson praised Royall for demonstrating that “the right to counsel in our democracy is neither a fiction nor a formality.”
But the most gratifying compliment to Royall and Dowell came from the men they defended. After the Supreme Court hearing, Kerling drafted a statement thanking the defense lawyers for their efforts. “We have been given a fair trial,” he wrote.32 “Before all we want to state that the defense council . . . has represented our case as American officers unbiased, better than we could expect and propably risking the indignation of public opinion.” He affixed a note stipulating that the statement “may not be used by Dasch and Burger!!!”
The final statement bore the signatures of Edward Kerling, Herbert Haupt, Werner Thiel, Hermann Neubauer, Richard Quirin, and Heinrich Heinck.
CHAPTER FOURTEEN
DEATH ROW (AUGUST 2–11)
PRESIDENT ROOSEVELT spent the weekend at Hyde Park. Before leaving Washington, he had served as best man as his friend and confidant Harry Hopkins married Louise Macy in the first wedding ceremony to be held at the White House in twenty-five years. The next day, he was “not surprised” to hear that the Supreme Court had ruled against habeas corpus for the saboteurs. He told h
is aide William Hassett he hoped the military commission would recommend death by hanging.
In the absence of any other appeal mechanism, the president was meant to act as a final reviewing authority for the case. But as he perused the Sunday papers in his bedroom, Roosevelt had pretty much made up his mind. He felt the case had already consumed far too much time and energy. “It’s always hard for generals to act as judges,” he mused. “I hope they don’t string it out too long. They ought to bring in a verdict just like a jury.” Knowing the way generals worked, however, he braced himself for a “wordy report.”1
“A veritable bale of papers” duly arrived at Hyde Park late on Monday afternoon, transported from Washington by military plane. The package included the 2,967-page transcript of the trial and a series of guilty verdicts. The military judges had sentenced all eight defendants to death by electrocution. However, they also suggested clemency for Dasch and Burger in recognition of the assistance they had provided to the FBI. In Dasch’s case, the commission recommended imprisonment for thirty years with hard labor; in Burger’s, imprisonment for life.
Although no records have survived of the commission’s deliberations, it seems unlikely there was much debate over the verdicts. In their questioning of the prisoners, the judges were uniformly hostile to the defense. Neither McCoy nor his subordinates showed any patience with the legal points raised by defense attorneys. From their point of view, technical legal arguments were irrelevant, as they were under instructions from the president to apply a “reasonable man” standard to the evidence. Royall got the impression from the beginning that “the Commission was against us,” which was why he put so much stock in his appeal to the Supreme Court.2