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Justice Paul E. Pfeifer's weekly column
Jan. 28, 2004

The Nazi Saboteurs' Military Tribunal
by Justice Paul E. Pfeifer

On a foggy night in June 1942, four German men – all of whom had once lived in America – were dropped off by a U-boat on a quiet stretch of Long Island beach near Amagansett. A few days later, another four-man team landed in similar fashion at Ponte Vedra Beach, Florida.

The eight men, specially selected because of their one-time residence in the United States , had been trained by the Nazis and sent here to commit industrial sabotage. They landed with crates of explosives, supplies, and large sums of US currency.

The Long Island team – led by George Dasch – was to rendezvous with the Florida team on July 4th in a Cincinnati hotel. But their nefarious scheme was thwarted before it ever started.

On the night that Dasch's team landed, one of his men – Ernest Burger – seemed bent on sabotaging the saboteurs. While the others were busy burying the explosives and supplies, Burger was leaving evidence of their arrival strewn about the beach.

And Burger wasn't the only one not wholly committed to the plan. When the Germans were discovered by a lone Coast Guardsman patrolling the beach on foot, Dasch let the unarmed man go with a bribe and a warning to forget what he'd seen. But the Coast Guardsman ran straight back to report his discovery.

The Germans managed to get off the beach and make their way to Manhattan where they lived the high life for a couple of days while the FBI launched a massive manhunt. But before the FBI could find them, Dasch came to the FBI. He exposed the plot and helped round up the Florida team, which the authorities did not yet know about.

When the FBI released the news, it was reported that the spies had been captured – not betrayed – to discourage another such attempt by the German government. Similarly, to thwart future infiltrations, President Roosevelt wanted the harshest punishment; two of the men were naturalized American citizens, and they were guilty of treason, the others were spies; all of them, in FDR's opinion, deserved the death penalty.

The US Attorney General told the president that the best way to handle the case would be a military tribunal rather than a civil trial. A military tribunal could be quick, secret, and would require only a two-thirds majority of the judges to impose the death penalty. A jury might find that since no sabotage had actually been done, the men only deserved short jail sentences.

Relying on precedent established during the Civil War, President Roosevelt issued a proclamation on July 2, 1942, that said, “…all enemies who have entered upon the territory of the United States as part of an invasion or predatory incursion…should be promptly tried in accordance with the Law of War.” The proclamation went on to say that all persons entering our territory preparing to commit sabotage, espionage or warlike acts “…shall not be privileged to seek any remedy…in the courts of the United States .”

In other words, the constitutional rights of due process and trial in a civil court did not extend to spies and saboteurs.

Seven generals were selected to preside over the tribunal. The Attorney General led the prosecution; two Army lawyers – Colonels Dowell and Royall – were ordered to serve as defense counsel. The President would be the final arbiter of all recommendations by the tribunal.

The Germans' best hope rested with Royall's opening statement. “In our opinion,” Royall said, “the order of the President of the United States creating this court is invalid and unconstitutional…” Despite Royall's protests, the tribunal proceeded.

Eventually, each German testified in his own defense. Sixteen days later, the hearings were finished – but Royall wasn't. He filed an appeal with the United States Supreme Court challenging the President's proclamation. The Court, which had adjourned for the summer, convened for a special session.

Royall argued that the President was without any statutory or constitutional authority to order the Germans to be tried by military tribunal, and that “they are entitled to be tried in the civil courts with the safeguards, including trial by jury” guaranteed by the Constitution. He also maintained that the tribunal's proceedings conflicted with the Articles of War adopted by Congress.

The Supreme Court was not persuaded. It agreed with the prosecution's contention that “the President's power over enemies who enter this country in time of war, as armed invaders intending to commit hostile acts, must be absolute.”

In a unanimous decision the Court said, “Congress and the President, like the courts, possess no power not derived from the Constitution. But one of the objects of the Constitution, as declared by its preamble, is to ‘provide for the common defense.' As a means to that end…the Constitution authorizes Congress ‘To make all laws which shall be necessary and proper'” to provide that defense.

The Court further said, “By universal agreement and practice, the Law of War draws distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants.

“Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.”

The eight Germans, who, without uniforms, came “secretly through the lines for the purpose of waging war by destruction of life or property,” were, in the Court's opinion, unlawful combatants.

With that decision their fate was sealed – all of the Germans were sentenced to death. Six of them were executed by electrocution, one after the other, on August 8, 1942 . For their assistance, Burger and Dasch had their sentences commuted from death to “confinement to hard labor for life,” but they were deported to Germany after the war.

They committed no sabotage, but the Germans' case proved historically important: they provided the precedent for the military tribunals President Bush's Administration proposed after the September 11 attacks.
EDITOR'S NOTE: Information for this column came from The Atlantic Monthly, February 2002: "The Keystone Commandos," by Gary Cohen. And from the United States Supreme Court case, Ex Parte Quirin, 317 U.S. 1 (1942).

The facts in Quirin are fairly straightforward. In June, 1942 German submarines surfaced off the American coast and two teams of saboteurs landed on our shores--one team in New York, the other team in Florida. Those teams initially wore German uniforms, but the uniforms were discarded after they landed on the beach. Wearing civilian clothes, they proceeded inland to accomplish their mission. They were all subsequently apprehended by the FBI.

President Franklin Roosevelt wanted these men to be tried before a military commission so he ordered that the men be turned over to the military authorities. FDR set up a military commission and decreed that these prisoners would not have access to the civilian court system. The prisoners were tried before the military commission and were found guilty. Although the Attorney General of the United States strenuously argued that the Supreme Court had no jurisdiction over the case, the Court did grant a writ of habeas corpus that had been filed with the court by the attorneys for the prisoners.

The attorneys that had been assigned to defend the prisoners contended that the military proceedings were inconsistent with the Milligan precedent and that the Supreme Court ought to order a new trial. The Supreme Court rejected that argument and sought to distinguish the Milligan ruling from the circumstances found in Quirin. The Court ruled that the jurisdiction of military commissions could extend to people who are accused of "unlawful belligerency." Under the rationale of Quirin, anyone accused of being an unlawful belligerent can be deprived of trial by jury. Even an American citizen who is found out on U.S. soil can be tried and presumably executed by U.S. military authorities as long as he or she is charged and convicted of "unlawful belligerency."

http://www.cato.org/testimony/ct-tl120401.html

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COMMENTARY: Military Tribunals a Necessary Weapon of War

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By Ed Offley

The two teams of four covert attackers infiltrated the United States on a mission of sabotage and murder. Wearing civilian clothes to blend in with the population, they carried disguised explosive devices and planned to attack key industrial plants and railroad facilities and their civilian workers.

Fortunately for the United States – still reeling after the Japanese attack on Pearl Harbor six months earlier, and an ongoing German U-Boat anti-shipping campaign that was lighting up the eastern Atlantic with the fires of torpedoed oil tankers from Maine to Florida – the German saboteurs were quickly rounded up by the FBI just days after they came ashore in mid-June 1942.

It is how the U.S. government dealt with these enemy agents that lies at the heart of a budding controversy in the ongoing war against terrorism.

Several weeks after the German teams (which included two naturalized American citizens who had returned to Nazi Germany and later volunteered for the sabotage mission), President Franklin D. Roosevelt announced that anyone planning to commit sabotage or espionage would be “subject to the law of war” and turned over to military jurisdiction instead of facing indictment and trial in the federal judiciary system.

http://www.sftt.org/dw11212001.html