What Happened to the 8 Germans Tried by a Military Court in World War II?





Nathan Williams is a history student at the University of Washington and an intern for HNN.

In early June of 1942, the realization began to dawn on the American people that this new war would be a long and difficult one. Rommel's Afrika Korps was rolling back the British forces in Egypt like a carpet. The German summer offensive in Russia was gaining ground at a frighteningly rapid pace. Even the war in the Pacific still seemed to be going badly, though news of the victory at Midway would soon reach the public. The most chilling news of all was unknown to even the highest levels of the government: two German U-boats, U-202 and U-584, with a unique cargo were heading to locations in New York and Florida, respectively. Their cargo included eight carefully selected and methodically trained Abwehr II agents, sent to the United States to cripple the nation's war production and sow terror and confusion.

On June 12 the first group of four landed on Long Island, followed four days later by the others in Florida. By June 26 all were in FBI. custody. By August 8 six of them were, in alphabetical order, strapped to an electric chair and put to death, while the remaining two faced life-long prison sentences.

The story plays out like a great American triumph. U.S. authorities had outfoxed the Nazis. At President Roosevelt's urging, a special Medal of Honor was created specifically for J. Edgar Hoover's role in the manhunt and investigation. But the real story was both more complicated and less thrilling.

Two nights after landing, motivated by reasons that will never quite be clear, the commander of the New York group, Walter Dasch, entered a phone booth and called the F.B.I. Believing the Bureau to be infiltrated by dreaded Gestapo agents -- the Abwehr and Gestapo had overlapping powers and a dangerous rivalry -- Dasch was coy, but intended to turn himself in and betray his comrades. The agent on the phone brushed him off as a kook, one of the thousands of practical jokers and mentally ill who had been flooding the boards of the FBI for months. Frustrated but undeterred Dasch traveled to D.C., turned himself in to the FBI headquarters, and gave the agents the names and approximate locations of the other seven conspirators. The FBI's role was confined merely to rounding them up. None of the seven put up a fight.

Seeking to discourage future saboteurs and sensing the public relations value of the capture, Roosevelt ordered Hoover to make the story public. Lewis Wood of the New York Times perfectly reflected popular reaction."Although actual sabotage has not yet been reported ..." he wrote,"Americans [want] to hear the roar of rifles in the hands of a firing squad." A Life magazine headline read,"THE EIGHT NAZI SABOTEURS SHOULD BE PUT TO DEATH." The only real complaints were that government was too slow in bringing the criminals to justice.

Concerned about secrecy and wanting to ensure application of the death penalty, Attorney General Francis Biddle, a former personal secretary of Oliver Wendell" clear and present danger" Holmes, asked Roosevelt for a secret military trial. In a recent column, William Safire suggested that the secret tribunal was undertaken to hide the mishandling of Dasch's first call, but a more likely cause seems to have been the Bureau's pragmatic desire to hide Dasch's betrayal from Germany and convince the Abwehr that they could not conduct operations in the U.S.

Though no civilians had been tried by a military tribunal since John Wilkes Booth's eight conspirators, the president was open to the idea. Safire points out that the president told Bidlle,"I won't hand them over to any United States marshal armed with a writ of habeas corpus." However, Roosevelt made clear to others that he was apparently willing to acquiesce if challenged by a civil court. He told his secretary,"This does not suspend the writ of habeas corpus." It is impossible to know how he would have reacted to the serving of such a writ, but it should be kept in mind that Roosevelt never openly defied the Supreme Court.

As the Attorney General himself, along with several other lawyers (including Lloyd Cutler, who recently wrote about the case), intended to prosecute the Germans, Roosevelt appointed two eminently capable military lawyers, Col. Kenneth Royall and Col. Cassius Dowell, to defend the eight men as a whole and another lawyer, Col. Carl Ristine, to specifically defend Dasch. The three attorneys did not have the confidence of their own clients but were committed to the official duties of the defense counsel in a Court-Martial:"He will guard the interest of the accused by all honorable and legitimate means known to law." Royall and Dowell even intended to attempt to persuade a civil court to intercede and wrote the president of their intent. He replied that they were to make their own best judgment.

The trial was held in a medium-sized room of the Justice Department. Shortly after it began Royall and Dowell applied for a writ of habeus corpus in U.S. District Court, in effect asking the court to demand that it hear the case. As the prosecution presented the evidence, including invisible ink pens, explosives buried on the beach where the Germans landed, and the Germans own written confessions, the defense persistently tried to argue that their clients had not ultimately inflicted any damage.

While the defense was still presenting its case, the District Court ruled against the Germans' request for a writ of habeas corpus and they appealed to a hastily assembled special session of the Supreme Court. One of the justices was on a leave of absence to allow him to serve as a lieutenant colonel in the Army, so only eight justices would rule on the case. The major precedent for sustaining the petition was an 1866 case, known as Ex Parte Milligan, in which the Supreme Court ruled,"The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection, all classes of men, at all times, and under all circumstances." In addition, the Court held in Milligan that military courts should only be held when and where civil courts are unable to operate. Biddle, citing his mentor, Holmes, argued that the current"public danger warrants the substitution of the executive process for the judicial process."

'INTER ARMA SILENT LEGES'

The decision of the Supreme Court to hear the case met mixed reaction by the media. The Detroit Free Press wrote,"Realism calls for a stone wall and a firing squad, not a lot of silly holier-than-thou eyewash about extending protection of civil rights." Arthur Krock of the New York Times disagreed:"Whatever disposition the Court shall make of the grave issues presented to it, the fact will brighten the American history of a time when Cicero's cynical apothegm-'inter arma silent leges' [in war the law is silent]-is the rule in almost every other land." In the middle of final arguments at the trial, which featured a particularly impassioned and desperate speech made by the defense, the Supreme Court ruled against the Germans, denying them the right to be tried by the regular courts. After a brief deliberation, the seven members of the military trial court agreed on a guilty verdict for all eight on all charges, with an automatic imposition of the death penalty because the charges included spying. However, the judges, with the support of Biddle and Hoover, unanimously recommended that Roosevelt commute the sentences of Dasch and his partner in betrayal, Ernst Burger, to life imprisonment. Upon reviewing the evidence Roosevelt agreed and additionally commuted Dasch's sentence to thirty years' hard labor.

Was the proceeeding fair? In a joint statement drafted shortly before their deaths, the six men condemned to die wrote:"Being charged with serious offenses in wartime, we have been given a fair trial .... Before all we want to state that defense counsel ... has represented our case as American officers unbiased, better than we could expect and probably risking the indignation of public opinion. We thank our defense counsel for giving its legal ability ... in our behalf."

In broken, stilted English, the six men, condemned to die by a country they had pledged to assault, found themselves converted to the ideals of the American judicial process, even though they had received no tangible benefits.

President Bush has used the 1942 trial as a precedent for military trials of the Al Qaeda terrorists. But questons remain. Will the alleged terrorists be permitted to petition the Supreme Court? If the Court serves a writ of habeas corpus on the Justice Department, how will such a request be treated? These questions are of immense importance, for as Kenneth Royall once ably declared,"One thing we are proud of in this country is our system of administering justice. We are proud of it particularly in times like this, when it stands out in sharp contrast to other systems which we are fighting."

Note: The author of this article is heavily indebted to Eugene Rachlis's They Came to Kill. Interested readers would also be advised to examine the account written by Dasch after he was pardoned by Truman, Eight Spies Against America.



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Nathan Williams - 12/8/2001

Don,

I think the real difference between Sebold and Dasche was that we were not yet at war in 1940, so setting up a military tribunal would not have had the same congressional support. As for Dasch not really being a Nazi, it's important to remember that the two that betrayed the others and escaped the death penalty were the ones that were seen by the Coast Guard patrolman the night they landed. It's a very reasonable assumption that they were just saving themselves at the expense of their comrades.

I'll check out that Harvard Law Review article. Thanks for the comments.

Nathan Williams
HNN


Don MacAngus - 12/8/2001

As a researcher at the University of Utah (and a prelaw student) I have been looking into the story of the Pastorius mission, and the Abwahr spies who were tried in the closed Military Tribunal in 1942.

Of the eight spies who were rounded up and tried, all were found guilty and sentenced to death, but while six were quickly executed via the electric chair, two had their sentences commuted and were ultimately released and sent back to Germany.

Of the two (Dasch and Burger) one claimed to be a loyal Nazi, and the other tried for years to immigrate to America (his wife was a citizen).

In 1957 he wrote a book about his experience, called Eight Spies Against America. This book is out of print, but currently there are over 50 libraries in the USA which carry it.

A quick read at around 200 pages, it explains that Dasch was never really a Nazi, and that the Abwahr recruited him to lead the mission because he had lived for so long in America. He always intended to turn the rest in because of the example of William Sebold in 1940. He writes that he cooperated fully in hopes of achieving clemancy for himself and the others, and because he was really a loyal immigrant who sought American citizenship.

Many of the Duchesne spy ring caught in the Sebold dragnet received mere 1 to 8 year sentences. Sebold himself went into the witness protection program and reportedly moved to a farm in Texas. Dasch says he was hoping for a similar deal. Instead, the 8 were sentenced to death.

Dasch says it was Hoover who betrayed him, first guaranteeing him clemancy, and then getting him to confess and plead guilty, and then sentencing him to death.

His book details the lies, as well as the fact that he was beaten and slapped around repeatedly, right there in the courtroom on several occasions. He also details how the information of his confession and his cooperation (he turned everyone in before they had fired on shot, killed or harmed on person, or committed on act of sabotage).

I think it is important to hear from all sides on this issue. Check into it. I would be happy to hear from anyone with an intelligent opinion.

BTW... watch for the upcoming article in Harvard Law Review. You may see my name as a contributing editor.

D.M.
Salt Lake City


Tristan Traviolia - 12/7/2001

The UCMJ is outside the normal civilian courts, but there are many precedents for tribunals under the UCMJ. The assertion that the president can "impose whatever rules he sees fit, ignoring rules of evidence or anything else that may be 'inconvenient' to the desired verdict " is fiction. The Republican traditions of the country allow elected officials to perform leadership functions. Setting up an "imperfect" court to administer "relative" justice within the rules of the UCMJ is an acceptable exercise of that leadership function. Searching for "absolute justice" at any cost to the public safety is not leadership. I can't think of a country in the world whose court system I would trust more than the UCMJ for trying foreign nationals.

If the military trial of terrorists captured overseas by United States forces in a warzone threatens the human rights of the world as we know them then our human rights were already at the bottom of the slippery slope. The United States credibility as human rights supporters was questioned long ago because of our daily acceptance of discrimination based on race, ethnicity, religion, sexual preference, and gender.


Nathan Williams - 12/6/2001

Slate's David Greenberg does undertake a specifically constitutional (as contrasted with my broader depiction) analysis of the military tribunals.

See http://slate.msn.com/?id=2059375

Thanks for the comments,

Nathan Williams
HNN


Comment - 12/6/2001


Reading the commentary about the case, I am dismayed that neither scholars nor media reporters mention the CITATION of the 1942 case, which is used as the precedental explanation for the Bush administration's current attempt to impose military tribunals. Many mention "ex parte Milligan" (1866), but no writer I've read in the popular or scholarly media cites "ex parte Quirin" (1942), the case on point here.

There is no way for interested and caring people to obtain unbiased information about precedental legal positions when scholars and journalists fail to provide accurate judicial citations. In order to research cases so that these populist arguments can be demolished, the so-called majority favoring the establishment of military tribunals have to be educated if they are to change their "knee-jerk" opinions. When a majority of Americans see how such "kangaroo courts" (Safire, NY TIMES, Op Ed, 26 November 2001) DO cancel the Constitutional rights of all Americans, we might underline one of the most basic prerequisites of democracy -- an informed and knowledgeable citizenry.

Carolsue Holland, Ph.D.,
Professor of International Relations
Troy State University


Stewart Riley - 12/6/2001

Appeals to majority opinion are a dangerous thing indeed. Remember, our entire constitutional system is based on the idea that there are rights and protections too important to be exposed to the whims of the majority. Read the debates over the passage of the Bill of Rights and you will find the fear of "majority tyranny" as one of the principal arguments for protecting individual rights. Saying that terrorists are "not human" is a patently false argument, for they are no different in that respect than mass murderers (possibly motivated by different ideas) whom we try in civil courts as a matter of course (including the citizens of other countries who commit crimes on American soil.) To dehumanize terrorists is both foolish and unproductive, for to answer and combat these people we must be able to understand their motivations (whether we agree with them or not) and prove to those who might be swayed by their ideas that ours are better.


Stewart Riley - 12/6/2001

Actually, the question of whether or not the UCMJ would govern this new set of military tribunals is still unresolved. These "courts" are outside of the normal military justice structure just as they are outside of the civilian justice structure. The president could impose whatever rules he sees fit, ignoring rules of evidence or anything else that may be "inconvenient" to the desired verdict. The question is not so much "do we trust American military officers" but "do we trust those who set the conditions of trial without public oversight?" We proceed down a slippery slope here, for this kind of secret military tribunal is exactly the sort of proceeding we have protested against when used by other countries (the case of Peru comes to mind), and our own credibility as human rights supporters comes into question if we modify our courts for expediancy's sake.


Tristan Traviolia - 12/6/2001

I believe that the Uniform Code of Military Justice would govern any "secret" military tribunals. If the UCMJ is good enough for American military personnel in peacetime it is good enough for foreign belligerents during hostilities. The basic question is, do we trust American military officers to impartially follow the UCMJ and give the accused a fair trial whether or not the proceedings are secret or not? The majority of the American people do. Does the President have the authority to order secret proceedings? The courts will decide, and posterity will judge the results.


Howard Mirkin - 12/5/2001

I did read Safire's article right after it was published, and his error is in assuming that a military tribunal does not provide a fair trial. His entire article is based on assumptions. The real point is - given that an overwhelming majority of the American people are supportive of the administrations proposals for trying the Taliban Al-Queda (if any are captured), this is an expression of true democracy in action. The majority rules. Then we get to the question of a country in which human rights are highly valued. If the majority of the people are in favor of military tribunals, how can the majority justify the supression of human rights? The answer is that people who act as the Taliban and Al-Queda are not human in the normal sense of the word, so they have no human rights. Let the will of the people of the United States speak!

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