Reflecting on the relationship between the two branches of government in wartime, Chief Justice William Rehnquist noted in a 1999 speech that both Lincoln and FDR had put a higher value on prosecuting the war than obeying the Constitution. By and large, the courts had gone along with the president. “To lawyers and judges, this may seem a thoroughly undesirable state of affairs, but in the greater scheme of things it may be best for all concerned,” Rehnquist concluded. “While we would not want to subscribe to the full sweep of the Latin maxim Inter Arma Silent Leges (In a time of war, the laws are silent), perhaps we can accept the proposition that, though the laws are not silent in wartime, they speak with a muted voice.” 15
WITHIN THE prison system, Burger was known as Special Prisoner A and Dasch as Special Prisoner B. As Nazi saboteurs who expressed their hatred of Nazism, they were anomalies, and it was difficult to deal with them fairly. The Bureau of Prisons wanted to send them to Alcatraz Island to protect them from Nazi sympathizers or an “overpatriotic American prisoner who might feel they got off too easily.”16 This alarmed the FBI, which feared that the harsh penal regime at Alcatraz would turn Dasch into a “mental case” and might cause Burger to attempt suicide.
Instead of Alcatraz, the two special prisoners were sent to the federal penitentiary in Atlanta in February 1943. It was an unhappy experience, particularly for Dasch. The prison psychiatrist diagnosed Dasch as “an obsessive, compulsive, neurotic personality type,” who frequently complained of “depressive trends, nervousness, insomnia, and vague pains.”17 During an interview on November 3, Dasch “cried and rung his hands. He repeatedly stated that he did not mind being in prison but that he was hurt by the way it was done; that he has terrific prejudice and anger and that he feels he cannot go on long this way.”
Dasch was disliked by prisoners and prison authorities alike. “He is a loquacious individual who likes to brag about his activities as an espionage agent and his connections with the Nazis,” reported the Atlanta prison warden, Joseph Sanford.18 “He goes out of his way to antagonize [other prisoners] by belittling their intelligence.” When his fellow inmates staged a prison rebellion in January 1945, they threatened to shove Dasch off the roof unless their demands were met. He was lucky to escape with his life after hours of patient negotiation.
Even Burger, who initially asked to be imprisoned with Dasch because he wanted company, soon began to tire of his endless chatter. By the end of the war, he had come to detest Dasch, and even threatened to kill him if he revealed information that could jeopardize the safety of his family back in Germany.19 Like Dasch, Burger felt aggrieved that the U.S. government had failed to make more use of his talents in the propaganda war against Nazi Germany. But he expressed his complaints more mildly, and retained the respect of everyone who dealt with him.
After the war ended, the Atlanta prison warden wrote a glowing testimonial for Burger, saying he had “cooperated with me and the institutional officials in every respect, and has courage equal to any man I have ever known.”20 Sanford considered Burger to be “straightforward,” “honest,” “diligent,” and “a walking encyclopedia” on the Nazi Party, deserving of better treatment from the United States than he received. By contrast, Sanford had “no confidence” in Dasch, whom he described as “a communist troublemaker” who would likely head for the Russian zone of Germany as soon as he was released.
One of the few people to feel at all sorry for Dasch was his old FBI handler, Duane Traynor, who was perhaps more aware than anybody else of the role he had played in rounding up the other saboteurs. When the war ended, Traynor wrote a letter to Hoover arguing in favor of a presidential pardon for both Dasch and Burger because of the help they had given to the FBI. “As you know,” he told Hoover, “I feel that I personally, and the Bureau as a whole, owe a moral obligation to Dasch.”21
Traynor received a very cold reply from Hoover, who had long since decided that Dasch was both “communistically-inclined” and “a mental case.” “Your personal opinion . . . relative to the granting of consideration to Dasch,” the FBI director told his subordinate, “is, to say the least, ill-advised.”
For the time being, both Dasch and Burger would stay in prison.
ONE OF the lessons of the saboteur affair is that it is very difficult to fight a war and respect legal niceties at the same time. From the government’s point of view, much of the benefit of using a secret military commission to try the saboteurs was offset by the speculation surrounding the case and the publicity generated by the Supreme Court hearing. Roosevelt and his advisers believed that the release of any information on how the saboteurs were captured could reveal the porous state of America’s coastal defenses. Despite the secrecy, the Germans were fairly well informed about what happened to their agents on the basis of American press reports and the debate in the Supreme Court. Nazi leaders concluded while the trial was still going on that Dasch and Burger had turned traitor.22
In retrospect, there was an obvious inconsistency in the way the government handled the saboteurs, as Eugene Rachlis pointed out in his 1961 book on the case, They Came to Kill.23 If Biddle was correct in arguing that America was engaged in “total war” and the saboteurs were “illegal combatants,” then why go to the bother of giving them even the pretense of a fair trial? To take Biddle’s argument to its logical conclusion, the saboteurs should have been arrested, tried, and sentenced in secret, with the press only being informed after the event, if at all. This, in fact, was the way similar cases were handled in Britain, the country where habeas corpus originated. Under British wartime regulations, the press was prohibited from publishing any uncensored information about enemy espionage activity.24 Had such a procedure been followed in the saboteur case, the Germans would truly have been left guessing about the reasons for the failure of Operation Pastorius.
If, on the other hand, Royall was correct in insisting that the saboteurs had legal rights guaranteed by the U.S. Constitution, then surely those rights were flouted by the manner of their trial. The outcome was virtually predetermined, both in the military commission and in the Supreme Court. Rules of evidence that would apply to normal defendants, even before a military court-martial, were ignored. Justice Frankfurter was so prejudiced against the saboteurs that he called them “damned scoundrels” in a memorandum to his fellow justices. President Roosevelt, who appointed himself the court of final appeal for the saboteurs, decided at the outset that they were “as guilty as can be.”
After American soldiers landed in Normandy in June 1944, and fought their way through France and Germany, the U.S. government rethought its attitude toward high-profile trials for saboteurs. Now that American agents were routinely being sent behind enemy lines in civilian clothes, the U.S. Army did not want its own “unlawful belligerents” to suffer the fate of the Nazi saboteurs. A practical test of American attitudes came in November 1944, when two more German agents, William Colepaugh and Erich Gimpel, were landed by U-boat on the Maine coast near Mount Desert Island.
Like their predecessors, Colepaugh and Gimpel arrived with lavish funds—$60,000 in cash plus a cache of small diamonds—which they proceeded to spend away in New York nightclubs. As with the original saboteurs, one agent (Colepaugh) betrayed the other (Gimpel), and turned himself in to the FBI. On this occasion, however, the government decided to deal with them as quietly as possible. Anything resembling the 1942 trial “would be entirely too spectacular,” a Pentagon memorandum noted. “All the fanfare over the last trial is out of place now that thousands of our men are being killed from week to week. It should be on a routine, purely military basis.”25 With a minimum of publicity, a military commission sentenced the two agents to death, but immediately commuted their terms to life imprisonment.
PRESIDENT HARRY S. Truman finally agreed to pardons for Dasch and Burger in April 1948, and they were both deported to Germany. They arrived in Stuttgart handcuffed to one another, amid a blaze of press publicity, despite American assurances that everything would be do
ne to ensure their “quiet absorption” into the German population.26 The country was ruined and it was practically impossible to find jobs. Many Germans regarded Dasch and Burger as traitors for sending their fellow agents to their deaths.
Soon Burger was feeling nostalgic for prison. In an October 1948 letter to Hoover from the southern German town of Würzburg, he described scrounging for food from garbage cans, and doing without winter clothes, underwear, and shoes. He was sharing a room fifteen feet by ten feet with his sister and brother-in-law. His entire prison savings of $250 had been converted into German marks at a very unfavorable exchange rate, and were now worth less than a carton of cigarettes. His wife, Bettina, had disappeared into the maw of the Russian concentration camp system. He was interrogated by German denazification courts, and was “pushed around by anyone who feels like it.”27
Dasch, meanwhile, had crossed illegally into the Russian zone in October 1948, exactly as the Atlanta prison warden had predicted.28 His motives for leaving the American zone were not so much ideological as personal. He wanted to collect affidavits from people he had known during the war, testifying to his anti-Nazi credentials, as part of his campaign to secure a full rehabilitation in the United States. By telling his story to the Russians, he might also be able to secure a measure of revenge for the way American authorities had treated him. The Cold War was beginning to heat up, and Dasch believed Moscow might be interested in exploiting his story for propaganda purposes. But the Soviets soon tired of their difficult guest, and ordered the East German secret police to keep a close watch on him. “We are firmly convinced that this man is an American agent,” a supervisor noted in Dasch’s secret police file. “He should not be permitted to move freely.”29 After debriefing him fully, and holding out false promises of a job, the Soviets expelled him back to the American zone in January 1949.
“Everybody mistrusts me,” Dasch complained to acquaintances before leaving Berlin.
THE FBI tried to track down the masterminds of Operation Pastorius after the war ended, but U.S. government interest in the case was almost exhausted by the time Dasch and Burger returned to Germany. The Bureau formally closed its investigation of Walter Kappe and his associates in December 1946. This created a strange anomaly. The men who sent the Nazi saboteurs to America were able to go free, while the men who betrayed the operation to the American authorities were kept in prison for another sixteen months.
In December 1948, eight months after he returned to Germany, Burger was surprised to wander into a U.S. government office in Stuttgart, and come face to face with Kappe’s right-hand man, Reinhold Barth, one of his instructors at the Quenz Lake sabotage school. He did some investigating, and found out that Barth had used his excellent knowledge of English and background with the Long Island Rail Road to get a job as a U.S. Army liaison officer with the German railway system. The impoverished, jobless Burger—who had received lessons from Barth in blowing up American railroads—was chagrined to learn that his former instructor occupied a “splendid office” in Stuttgart and was on the U.S. government payroll.
This was too much for even the phlegmatic Burger to take. “You will see the humor in the situation,” he wrote Hoover.30 While Burger found it “impossible to make a living,” Barth had a job that allowed him to monitor the movement of U.S. troops and military supplies all over Germany. If he wanted to carry out acts of sabotage against the United States, the former Abwehr official was now in an ideal position to do so.
Burger told everybody he could about Barth’s dubious past—the FBI, military intelligence, the U.S. occupation authorities—but no one was interested. It was difficult to find Germans who spoke good English with as much expertise in their field as Barth. Operation Pastorius belonged to the past. A new Germany was rising from the ashes of history.
IN THE fall of 1950, Dasch was struggling to come to terms with a lifetime of soaring dreams and bitter defeats. He was forty-seven years old, and he had failed at practically every endeavor he had ever undertaken. His disappointments ran the full arc of the ideological spectrum. He was raised as a Catholic, only to be thrown out of seminary; he pursued the American dream but left America bankrupt and disillusioned; he came to see Hitler as a savior but then turned against him; he was selected to lead a sabotage expedition but betrayed his own men; he dreamed of using the money he had been given for Operation Pastorius to lead a propaganda war against Nazism, only to be rebuffed by the Americans; he offered his services to the Soviets as a lecturer and writer, but was thwarted in that dream too.
He now divided his time between writing petitions to Washington for his readmission to the United States, a totally futile effort, and trying to earn enough money to survive from day to day. Most days, he could be found standing in a busy shopping street in Mannheim, a German city south of Frankfurt, hawking wool to housewives from a collapsible table covered by an umbrella.
One day, Dasch was walking through the streets of Mannheim when he came across someone who looked very familiar. The middle-aged man was gaunt and disheveled, but the outlines of his fleshy jowls and thick bull neck were still quite visible. He was balder than Dasch remembered, and he waddled rather than walked. It was Walter Kappe.
Kappe seemed startled to see his former agent, and shivered a little as he looked at him. Ever talkative, Dasch invited him to visit his “store,” but Kappe showed no interest in conversation, and soon slipped back into the crowds. “He was surprised and shaky like hell,” Dasch recalled. 31
Since the end of the war, Kappe had lived on the lam, convinced that the Americans were hunting him down.32 He enjoyed the conspiratorial life, holding meetings in the forest with former associates and members of his family. He later changed his name to König, and got a job with the British army as a personnel officer. When he met Dasch on the street, he was still running away from the Americans, even though they had lost interest in him.
One of the most puzzling aspects of Operation Pastorius is why the Nazi spymasters placed so much trust in Kappe, and why Kappe in turn put so much trust in Dasch. For all the energy that he had displayed as a leader of the German-American Bund, the affable, fun-loving Kappe was a terrible judge of men. By selecting Dasch to lead the first team of saboteurs to land in America, he practically guaranteed the failure of the sabotage operation.
Part of the answer to the conundrum probably lies in Nazi bureaucratic politics. Kappe wore a gold button in his lapel, meaning that he joined the Nazi Party long before it achieved political power. He rose to prominence as a Nazi propagandist in America, which meant that his enemies were in America, rather than in Germany. His personal failings were largely unknown to his fellow bureaucrats at the Nazi Party’s Ausland Institut in Berlin, which enthusiastically supported his plan for a sabotage operation in the United States and lobbied for it with Hitler.
Dasch was adept at playing on Kappe’s vanity and taste for high living. In Berlin, he plied Kappe with gifts of wine and rum and flattered him shamelessly, in addition to impressing his boss with his intimate knowledge of American ways.33 In return, Kappe brushed aside criticism of Dasch from the other V-men. By the time the saboteurs reached the French port of Lorient, where Dasch lost his identity papers, Kappe had probably realized his mistake. By then, however, it was too late for him to get rid of Dasch without exposing himself to ridicule and jeopardizing the entire operation. All he could do was hope for the best.
During the seventeen-day submarine voyage, Dasch spent much of his time lying in his bunk worrying that the captain of U-202 would receive a message from navy headquarters ordering him to return to Lorient. He was convinced that Kappe suspected him of planning to turn traitor. But his luck held, and the message never came.
THE MOST obvious flaw in Operation Pastorius was the lack of ideological commitment and cohesion among its principal protagonists. Although most of the saboteurs either were Nazi Party members or had Nazi connections, they lacked the ideological zeal to sacrifice themselves for the cause. The only one
among them who believed in the mission wholeheartedly was Kerling, the leader of the Florida group, and even he had personal reasons for coming to America. To varying degrees, the saboteurs were all seduced by American plenty, which contrasted so starkly with the poverty of wartime Germany. “In Germany, you couldn’t buy a pair of shoes, a piece of meat,” recalled Haupt’s friend Wolfgang Wergin, who was offered a place on the sabotage team by Kappe, but declined. “Everything was rationed. Nobody in his right mind was going to go from a country like that to a country with everything, like America, and start blowing things up. You’d have to be nuts.” 34
Six decades later, of course, a group of Islamic terrorists would do precisely that, and plot the destruction of the World Trade Center at the very time they were leading the life of American suburbanites, ordering pizzas, visiting shopping malls, and dropping into video stores. The Nazi saboteurs were as well trained and just as well funded as the September 11 hijackers. They had the logistical support of the German armed forces. So why did one plot succeed and the other fail? One reason is that Osama bin Laden’s brand of militant Islamic fundamentalism is more myth than reality. Until the bin Laden myth is discredited in practice, it will remain a rallying point for the resentful and the deprived. By contrast, by 1942 the Third Reich was not just a myth; it was a very grim reality, and a much less attractive one than the reality of wartime New York and Chicago.
Even so, Operation Pastorius was hardly doomed to fail. A wartime study by the Office of Naval Intelligence concluded that Kerling, supported by others like him, might well have succeeded in carrying out its mission. 35 America’s coasts were poorly defended against saboteurs. The freedom with which Haupt moved around Chicago, and the fact that none of his friends or relatives gave him away, suggested there was a sizable German-American population willing to offer shelter to Nazi agents.