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Nazi Saboteurs at the Supreme Court

By Daniel B. Moskowitz
9/21/2015 • World War II Magazine

ON JULY 29, 1942, the Japanese extended their invasion of New Guinea by beginning a march over the Owen Stanley mountains to attack Port Moresby; the British, unable to follow up their infantry penetration in northern Egypt with a tank assault, retreated from positions around Tell el Makh-Khad; and German forces at Tsimlyansk, Russia, pushed back a fierce Red Army as it rushed across the Don River. But arguably the most important World War II battle fought that Wednesday took place on First Street NE in Washington, DC, just east of the Capitol building.

That day, the U.S. Supreme Court—meeting in special session for the first time in its 152-year history—weighed the fate of eight Nazi agents who six weeks before had landed from U-boats on the Atlantic coast. Traveling from the submarine base at Lorient, France, four landed at Amagansett on Long Island, and four at Ponte Vedra Beach, Florida. All came ashore in uniform—the Long Island squad in full marine infantry kit, the Florida four in bathing suits plus marine uniform hats—which they buried in the sand, quickly donning civilian clothes.

The infiltrators brought quantities of explosives and $172,200 in U.S. currency (approximately $2.46 million today). Their orders: slip into American life and eventually maneuver into position to blow up aluminum plants, railroad connections, locks on the Ohio River, and other targets.

The eight were the vanguard of Operation Pastorius, named for Franz Daniel Pastorius—founder, in 1683, of the first organized German settlement in North America, Germantown, outside Philadelphia—and developed by Abwehr chief Admiral Wilhelm Canaris to land saboteurs in the United States. Canaris wanted to emulate his own feats during World War I, when he destroyed munitions at Black Tom Island in New York Harbor and damaged the Statue of Liberty. Pastorius operatives were German citizens who had lived in the United States but had returned to Germany, where the Ausland Institute, which tracked émigrés, recruited a handful. The saboteurs trained near Berlin in chemistry and incendiary making, and toured German factories and rail yards to learn points of vulnerability. (The Supreme Court case, known as Ex parte Quirin, is named for lead defendant Richard Quirin, a native of Berlin who lived in Schenectady, New York, for 12 years before returning to Germany to become one of the first Pastorius agents recruited.)

The Roosevelt Administration had hoped that trying the speedily captured agents in a military tribunal would keep details of Operation Pastorius secret; the high court hearing pulled back the veil. The Justices were not weighing whether the prisoners were guilty of violating the law of war, but whether the men had a Constitutional right to trial in civilian courts, with all the accompanying legal protections and rights to appeal, rather than before a military tribunal. The “law of war” is the international standard defining acceptable and unacceptable wartime conduct; the Articles of War regulate the American military. The charges against the prisoners were based on both.

The Justices’ decision set precedents that are at the heart of current controversy over how to try suspected terrorists. The World War II-era ruling “has been a key case in most of the recent decisions on the status of detainees at Guantanamo,” says Charles A. Blanchard, general counsel of the U.S. Air Force. Quirin was invoked in 2002 as support for the military tribunals set up to try those suspected in the September 11, 2001, attacks on the World Trade Center and the Pentagon.

THE 1942 MILITARY TRIBUNAL was created by presidential decree six days after American authorities took the last of the saboteurs into custody. Law enforcement had quickly learned of the Germans’ arrival—John Cullen, a Coast Guard seaman second class, spotted four of them on the beach at Amagansett—and the Federal Bureau of Investigation trailed the men for days before arresting them.

Later, when news of the successful manhunt became public, the FBI reaped widespread kudos, but in fact key revelations had simply fallen into the Bureau’s lap. One of the Long Island four, George John Dasch, had called the New York FBI office on June 14, a day after coming ashore, saying he had important information he would reveal in Washington, DC, the following week. Five days later, Dasch phoned FBI headquarters, telling officials to pick him up at Washington’s Mayflower Hotel. As soon as they saw Dasch, agents recognized him; Cullen had described one of the men on the beach as having a streak of silver hair. Dasch willingly described the Pastorius plot and details about his accomplices. Thanks to coming clean, Dasch was not a party to the Supreme Court proceedings, but his fate clearly depended on the outcome.

Major General Frank R. McCoy headed Roosevelt’s tribunal. The West Point graduate had led the 165th Infantry Brigade in World War I, retiring from the army in 1938. McCoy’s panel consisted of three other major generals and three brigadier generals. The decree specified that a vote of two-thirds of tribunal members would suffice to sentence the defendants to death.

The case came to the high court because the U.S. District Court for the District of Columbia rejected the prisoners’ petition for civil trial. Their attorneys asked the Supreme Court to review that order, and later filed an appeal with the U.S. Court of Appeals for DC. The high court took the unusual step of accepting the case before the Court of Appeals heard it because of, in Chief Justice Harlan Fiske Stone’s words, “the public importance of the questions raised by their petitions.”

The Supreme Court hearing was clearly not a normal one. Interrupting their four-month summer recess, the Justices began work on the case before Justice William O. Douglas could return from vacation; he made it from Oregon to the capital on July 30, in time to vote on the outcome. Justice Frank Murphy did not participate. He was in uniform himself, technically “a reserve officer on inactive duty” using a short-term leave from the court to serve as a lieutenant colonel on General George C. Marshall’s staff. Murphy listened to the proceedings sitting concealed by the crimson drapes behind his fellow Justices.

Rather than business suits, most lawyers involved—including Major General Myron C. Cramer, chief advocate general of the army—wore uniforms. Security was taut. At 10 a.m., two hours before the hearing was to begin, a dozen FBI agents swept the courtroom, then stood guard around the chamber. The defendants, confined in the DC jail, were barred from the proceedings, but several Washington notables—including FBI chief J. Edgar Hoover and the wives of Justices Robert H. Jackson and James F. Byrnes—were among the 300 spectators, many of whom stood in line for hours in blazing July heat to claim seats.

And compared with the standard one hour allowed each side in a case to address the Court, the Justices gave the lawyers an extraordinary amount of time to present: the July 29 hearing started at noon, stopped at 2 p.m. for a 30-minute lunch break, and did not adjourn that day until 6. The Court convened the next day for three-and-a-half hours of additional argument.

THE PRESS AND PUBLIC were hungry for news of the Nazi plot. The saboteurs’ landing had come to light on June 28, when the FBI announced their capture—and said little else. The military tribunal had rejected all efforts to illuminate events in Room 5235, an FBI lecture hall at the Justice Department, where the trial was going on behind barricaded doors.

Elmer Davis, the CBS newscaster who headed the Office of War Information, pleaded with President Franklin D. Roosevelt for enough access to the tribunal proceedings so he at least could give the press a daily summary. FDR seemed to agree, but on July 7, when Davis sent a subordinate to work out that arrangement, guards barred the man from even trying to get close to the trial room. Later that day Attorney General Francis B. Biddle twice sent personal notes to General McCoy urging him to meet with Davis’s people, but McCoy—backed by Secretary of War Henry Stimson—ignored both requests.

So until the Supreme Court hearing, the news from the tribunal consisted of reports about witnesses seen entering the makeshift courtroom; only once, during a recess, were reporters allowed into Room 5235 to glimpse the layout and the prisoners.

The tribunal trial had been underway for three weeks by the time the issue reached the Supreme Court—and continued as the high court considered the case. Part of the process worked out for the extraordinary session was that during it neither side would give out information about the tribunal. Nonetheless, the high court hearing revealed that during the military proceedings the saboteurs’ lawyers had challenged one panelist’s objectivity, without success. Biddle himself argued the government claim that the tribunal was constitutional.

The Germans’ attorney was Colonel Kenneth C. Royall, a former U.S. Senator from North Carolina whom Roosevelt had selected to defend them. Royall contended that Congress could decree that military tribunals rather than civilian courts try allegations of a particular war crime—as legislators had done in regard to spying—but argued that the president lacked authority to make such a determination.

And Royall unveiled the Germans’ main defense. Admitting his clients had trained in sabotage and had landed covertly in the United States from German submarines, Royall insisted that their motive was simply to return to the country where they had once lived. At least one prisoner, Herbert Haupt, “has been treated miserably in Germany,” Royall said. “He says he wanted to come home. At no time did he pledge allegiance to Germany. He always was an American. The only evidence that he ever joined the German army is merest hearsay, which this court should not consider.”

None of the eight intended to carry out any plot, Royall argued. While they did come ashore with explosives, “no location was ever selected for their use,” he said. “There was no specific plan.” The men had not used the explosives and had “done no damage and no one was injured.” They also carried no personal arms, Royall noted.

The Justices’ questions seemed to reflect an aim of determining the Germans’ status. Justice Jackson noted that the U-boat delivering the men had entered American waters. Had the Germans, wearing Nazi uniforms, been seen and shot as soon as they stepped ashore their killings would have been justifiable, not murder, he said.

“Why are not these men all members of an invading force and subject to the law of war?” Justice Jackson asked.

“Because they do not admit they were an invading force, but only used this means to get out of Germany,” Colonel Royall answered, insisting that the men were “unarmed.” To that, Justice Jackson suggested the Germans’ TNT was an armament. He wondered if the defendants were contending that they could not be prosecuted “until the explosives are set off.”

UNDER THE PERTINENT Article of War, the government can suspend habeas corpus—a detainee’s right to a court hearing—for actions occurring in a “theater of operations.” The Justices and the lawyers extensively debated what comprises a theater of operations. “We contend that with civil courts open and operating, Congress did not intend that these charges should not be tried therein,” Royall said.

Justice Hugo Black questioned whether defense lawyers were too narrowly defining “theater of operations.”

“What about the planes that fly over foreign countries and drop bombs and destroy property far removed from the scene of battle?” Justice Black asked.

“If it is a military plane, that is generally accepted as a means of fighting or of combat,” Royall answered.

“A submarine is, too,” Justice Black said.

“These submarines in this case did not do anything but transport.”

Justice Felix Frankfurter cast doubt on Royall’s interpretation of a combat zone. “Whatever may be an instrument of the enemy may become a military operation,” he insisted.

Under that approach “anything that affects the war effort is part of the war,” Royall warned. “There has got to be some limit on it, or we have very few constitutional guarantees left when we go to war.” An expansive definition of a theater of operations, he said, could embrace a war plant whose workers went on strike.

Justice Frankfurter tried to test the limit. “Suppose an enemy should place a chemical in the Glenn Martin plant so that whole plant explodes,” he said. “Would you say that soldier was engaged in a military operation?”

“No, I would not say so,” Royall answered.

“Then if a regiment of soldiers marched on the plant,” Frankfurter said. “Then that would not be a military operation?”

“The situation is different,” Royall replied. “Somewhere a line would be drawn.” He observed that Coast Guardsmen patrolling the beaches where the Germans landed did not carry arms.

At the podium, Biddle attacked Royall’s contentions. “We are at war with Germany and these men are our enemies,” Biddle said. “War wipes out the rights of the alien.” He revealed that not only had the men trained at a German sabotage school but had signed contracts there, so they “were employed and paid by the German government.”

“They came here wearing fatigue clothes of German marines so that if arrested as they landed they could make the claim that they were prisoners of war,” Biddle added. “They forfeited that right when they changed into civilian garb.”

Royall spent most of his effort before the Justices pleading to try the eight in civilian court rather than before a tribunal. He also argued that the tribunal itself was improperly constituted because it did not meet standards Congress laid out in the Articles of War. Among other ostensible deficiencies, according to Royall, the tribunal could set its own rules, decide less than unanimously, and convey that decision directly to the president without the defendants knowing the vote or the outcome. Biddle countered that the Constitution gave the commander in chief powers to wage war beyond those outlined by Congress.

Normal procedure at the high court is for the Justices to discuss a case in private, then take a preliminary vote. Based on that vote, one Justice among the majority is assigned to write a formal opinion, which other members of the majority revise and edit. The outcome is announced only when all Justices have signed off on the full written opinion and it is made public.

That was not how the saboteur case went.

INSTEAD, AFTER THE ARGUMENTS ended on July 30 the Justices immediately circulated memos among themselves presenting their individual views of the case—Justice Jackson insisted the prisoners had no Constitutional rights, that they were spies and invaders and deserved no further consideration—and met later that day. At that private conference, Chief Justice Harlan Fiske Stone declared that in his view “from time out of mind, it is within the power of the commander in chief to hang a spy.”

A bystander watches trucks carrying the prisoners form the Justice Department. (National Archives)
A bystander watches trucks carrying the prisoners form the Justice Department. (National Archives)

The next day, during a four-minute public session of the Court, Chief Justice Stone announced that he and his colleagues unanimously refused the prisoners’ petition for a writ of habeas corpus and found the president within his rights to set up the tribunal as the sole venue for trying the agents. A written opinion explaining that outcome was not issued until October 29.

“An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law,” Chief Justice Stone wrote. The prisoners had no right to civilian trial, he explained, because the acts they were charged with as enemies operating under orders to destroy wartime infrastructure were violations of the law of war that military tribunals are set up to adjudicate.

To the defense attorneys’ claim that their clients should not be considered unlawful enemy combatants, the court held, in Chief Justice Stone’s words, “Those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission.”

Given the wartime need for national unity, the chief justice felt it important the court rule unanimously—a goal that proved difficult to achieve. Admitted Justice Douglas much later, “While it was easy to agree on the original per curiam [the basic ruling], we almost fell apart when it came to write out the views.” Chief Justice Stone managed to keep colleagues from publishing dissenting or concurring opinions; nonetheless, he still had to write that while all agreed that the prisoners had no right to civilian trial, “a majority of the full Court are not agreed on the appropriate grounds for decision.”

By the time the Court’s opinion officially appeared, however, it was a footnote. Immediately after the announcement of the July 31 ruling that okayed the tribunal, the proceeding in Room 5235 wrapped up. On August 3, the tribunal members found all eight saboteurs guilty and sentenced them to death. President Roosevelt, reviewing that sentence, affirmed it for six of the Germans. FDR commuted Dasch’s death penalty to 30 years in prison and Burger’s to life behind bars, acknowledging their confessions and assistance to the FBI in capturing their coconspirators. The other six died just days later, on August 8, 1942, in the electric chair on the third floor of the DC jail. Their remains were buried in a potter’s field near the city sewage plant. (In 1948, federal authorities freed Dasch and Burger and deported them to the American-controlled zone of West Germany.)

THE EXECUTIONS AND IMPRISONMENTS did not end the high court’s involvement with Operation Pastorius. Two more cases came before the Justices that stemmed from the saboteurs’ incursion. The first involved a German-born naturalized American citizen, Anthony Cramer. Cramer and one of the Pastorius agents, Werner Thiel, had roomed together during Thiel’s earlier time stateside. At one point the two jointly owned an unsuccessful delicatessen. After landing from the submarine, Thiel contacted Cramer; the men met twice in public places, and Cramer agreed to hold onto $3,400 that Thiel handed his former business partner. After Thiel’s arrest, authorities arrested Cramer and charged him with treason. A trial court convicted him, but the Justices overturned that verdict, 5-4. Without evidence of traitorous intent, social contacts simply could not be seen as giving material assistance to an enemy, the majority ruled.

A similar review of a conviction for treason by giving aid and comfort to the enemy came before the Justices in the case of prisoner Herbert Haupt’s father, also a German-born American citizen. The elder Haupt was convicted of a dozen specific acts of helping his son’s sabotage mission, including letting the younger man live in the family residence in Chicago, accompanying his son when he applied for a job at a factory making lenses for bomb sights, and buying him a car. By an 8-1 vote, the Justices upheld the father’s conviction, ruling that sheltering an enemy agent was by definition unlawful aid. Haupt senior, sentenced to life imprisonment, was released and deported in 1957.

The core saboteur case remains a point of controversy.

“The conventional wisdom is that Ex parte Quirin was a pro-government case,” the Air Force’s Charles Blanchard noted in a 2013 blog post. But he called attention to an alternative interpretation by Fordham University Law School professor Andrew Kent, who argues that the Justices should never have considered the saboteurs’ appeal. Before the saboteur case, no enemy soldiers had gotten a chance to take any dispute to American civilian courts, Kent noted. In doing so, he said, Quirin amounted to a defeat for the government, because Quirin can be read to open the way for prisoners of war brought to the United States—or even to American-controlled territory, such as Guantanamo—to claim access to court consideration of any complaints.

Justice William O. Douglas might have agreed.

“It was unfortunate the Court took the case,” Douglas wrote nearly 40 years afterward.

Originally published in the July/August 2014 issue of World War II magazine. 

 

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