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

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."


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."