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A Timely Account of the Key Supreme Court Military Tribunals Precedent:A Review of Louis Fisher's Nazi Saboteurs on Trial
By JOHN W. DEAN
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Friday, July 25, 2003

Louis Fisher, Nazi Saboteurs On Trial: A Military Tribunal and American Law (Univ. Pr. of Kansas 2003)

Louis Fisher is a Ph.D. in political science, and Senior Specialist in Separation of Powers at the Congressional Research Service at the Library of Congress. Fisher has published some fifteen books, and over three hundred articles in professional journals, magazines. and newspapers. His latest work, Nazi Saboteurs On Trial: A Military Tribunal and American Law, could not be more timely.

In early July 2003, President Bush officially authorized the Department of Defense to use military tribunals as part of the "war on terrorism." Any day now, the first such military trial may be scheduled.

If there is a better source for the general reader about the historic use of military tribunals, that provides essential background and perspective, I am unaware of it. Fisher reports the good, the bad, and the ugly about the military tribunal used by President Franklin Roosevelt in 1942, during World War II, to bring eight Nazi saboteurs to justice. Or was it injustice?

The Nazi Saboteurs, Their Botched Plot, and The Informer Among Them

For the espionage and sabotage undertaking known as "Operation Pastorius," the Nazis assembled eight hapless Germans, including two U.S. citizens. Fisher's brief profiles reveal that the men - who ranged in age from 22 to 39, with George Dasch being the oldest - were rank amateurs, and less than qualified for the tasks. Indeed, it is hard to imagine recruiting eight more incompetent men.

Indeed, even the operation's name was ironically inept, as Fisher explains. Franz Daniel Pastorius, an early German immigrant to America, was no Nazi. To the contrary, during the early 17th century, he helped outlaw slavery in the German religious community.

Following three weeks of training at a sabotage school, and two weeks of vacation, the eight men traveled in Nazi submarines, in two teams of four men, to the east coast of the United States. Their titular leader was Dasch - who had become an American citizen by serving in the U.S. army; worked as a salesman in Chicago and a waiter in New York City; and returned home to Germany at the outbreak of World War II.

Dasch and his team landed on Long Island, where they were spotted by a Coast Guard patrolman, but managed to evade him, and reach New York City. The other saboteurs landed in Florida.

Apparently, Dasch had mixed feelings about the mission. Indeed, he later claimed that he joined the saboteurs solely in order to escape Nazi Germany. After arriving in New York, he called the FBI. They dismissed him as a kook. So Dasch traveled to Washington, where he reported the plot to a disbelieving FBI agent.

By this time, there was a nationwide FBI alert, based on a report of the Coast Guard's discovery of Nazi uniforms and explosives buried on the Long Island beach on which the saboteurs had landed. Still, the FBI agent thought Dasch was a nut who has learned about the alert - notwithstanding a news blackout.

As Dasch was being shown the door, he took his suitcase filled with $84,000 cash and dumped it on the agent's desk. That finally got the FBI's attention.

Meanwhile, Dasch was assured by the FBI that he would be pardoned by the president for turning himself and the others in. Based on these assurances, he spent eight days answering questions.

With Dasch's information, all the men at large were quickly arrested.

The Military Tribunal Proceedings: FDR Sends a Message to Hitler

President Roosevelt, delighted by the arrests, wanted the saboteurs tried and executed by a military tribunal - in order to send a message to Hitler. According to Attorney General Francis Biddle, FDR wanted Biddle to personally try the case. But Fisher suggests that Biddle may have been a bit of a publicity hound, and actually sought out the job.

Why was military tribunal chosen? First, a civilian court proceeding might have resulted in acquittal - or a judge's decision to dismiss charges. At the time, Biddle advised, it was not a crime to merely buy a gun or plan to use it in a murder, and the saboteurs had done nothing more.

Second, a military tribunal would offer a crime with which to charge the saboteurs. When enemy combatants are found behind enemy lines in civilian clothing, as they were, it is a serious violation of the laws of war. It also offered the death penalty.

On July 8, 1942 the military trial commenced. Dasch was assigned an Army lawyer. The other seven were represented by two Army attorneys. One of those attorneys - Colonel Kenneth Royall, a Harvard Law School graduate and experienced trial lawyer - took his assignment seriously. (Years later, Royall became the Secretary of the Army.

Fisher's work provides a digest of the massive, 2,967 page trial transcript. He writes that it took him "ten full (but exhilarating) days to read this material, take notes, and make photo copies of selected pages."

It only took twenty days to try and convict the eight men in a makeshift courtroom on the Fifth Floor of the Department of Justice - although the proceedings were interrupted for three days when the U.S. Supreme Court heard a challenge to the tribunals' jurisdiction.

With remarkable dispatch, however, the Justices issued a per curiam opinion (that is, an unsigned opinion on behalf of the court) affirming the tribunal's jurisdiction. The secret proceedings thus continued.

Defense counsel pointed out that none of the eight men had, in fact, undertaken any act of sabotage, and all had confessed their actions, claiming they never intended to carry out such acts - rather, they had sought only to escape from Germany. But the eight Army generals hearing the case were unpersuaded. All eight men - even Dasch - were found guilty, and sentenced to death.

On August 8, 1942, FDR completed his review of the proceedings. The President ordered the execution of six of the men, sparing Burger and Dasch because they had cooperated. (Burger was given life, and Dasch, 30 years.) FDR felt his actions sent a message to Hitler, as well as those who cooperated.

Within hours, all six of the men given death sentences were executed in the electric chair. The rationale for the use of the death penalty seems to have been that all of the men could legally have been shot when they landed in their Nazi uniforms. Moreover, according to the logic of the day, they had only compounded their offense by changing into civilian clothing to go about their mission.

The Supreme Court's Holding in Ex parte Quirin

A particularly informative section of Fisher's book examines the situation confronting the Supreme Court. Although the court made its decision in the middle of trial, Chief Justice Harlan Stone began drafting the Court's opinion only after the six executions.

Stone believed a unanimous ruling was essential, given the dubious nature of all the proceedings - and he managed to cobble one together. It was publicly well received. Privately, legal scholars and academics found it not to have been the Court's finest hour.

For example, constitutional scholar Edward S. Corwin wrote that the Court's ruling was "little more than a ceremonious detour to a predetermined end." John P. Frank, who had clerked for Justice Black, wrote that the Court "sent the defendants to theirs deaths some months before Chief Justice Stone was able to get out an opinion telling why."

The most powerful critique was actively solicited by Justice Frankfurter - who asked Frederick Bernays Weiner, an expert on military justice, for his views. Weiner concluded that the Court had been "careless or uninformed [in its] handling of the Articles of War" - a source of law that should have been central to the Court's ruling.

Fisher's Conclusion: Quirin Hardly Justifies Modern Tribunals

Fisher shares his own views at the end of his work. He has little favorable comment about FDR's use of military tribunals during World War II, and nothing good whatsoever to say about the trial of the eight Nazi saboteurs.

Nor does Fisher believe that Quirin is a precedent worth following. "The legal mind has a lazy habit of looking for 'precedents' to justify what has been done or is about to be done," he reminds us. "Little effort is made to scrutinize the precedent to determine whether it was acceptable then or worth repeating."

If I read Fisher's conclusion correctly, he believes that the use of the military tribunal was unnecessary then, and is unnecessary today. His analysis suggests that it was a flawed approach in 1942, and is likely to be flawed now. In sum, Fisher clearly wants us to learn from our mistakes, not repeat them.

"Without September 11 and the Bush military order of November 13, 2001, Quirin might be remembered as a curious artifact of World War II," Fisher notes. In his view, it should have remained an artifact: "We are all familiar with the extent to which legal principles are scarified in time of war. How much can we learn form the 1942-1945 experience to avoid duplicating mistakes?"

Anyone who seeks to answer that question can certainly begin by studying this slim but fact-packed volume, by Louis Fisher.


John W. Dean, a FindLaw columnist, is a former counsel to the President.

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