Dan's Papers - March 21, 2008 - Saboteurs on Trial

Last week, the Pentagon announced that six Al Qaeda terrorists being held at Guantanamo would at long last be put on trial before a military tribunal that could impose the death penalty. They are to be charged with conspiracy, murder in violation of the law of war, attacking civilians and terrorism. Some of the terrorists have been held incommunicado for five years or more. One of them, Khalid Sheikh Mohammed, is alleged to have masterminded the attacks of 9/11.

The legal framework for this upcoming trial, as it was announced by President Bush, is based on the framework that was created in 1942 when four Nazi saboteurs landed on the beach in Amagansett from a German submarine in the middle of the night. After their capture, President Roosevelt had to decide what would be done with them. He had a meeting with the head of the FBI, the Attorney General, his Admirals and Generals, and Secretary of War, Henry Stimson, and it was at that meeting that he decided to create a special military tribunal to determine the fate of the intruders. He personally appointed the judges, the two prosecutors and the two defending attorneys. And he tried mightily (and partially failed) to predetermine the outcome, which was that all of them, after the trial, be immediately put to death.

Interestingly, at no time did Roosevelt consult with either Congress or the Supreme Court before deciding to create the tribunal. He did what he did based on the fact, he said, that he was not only the President but also the Commander in Chief, which, in wartime, gave him the right to do whatever he felt was necessary to protect the people of the United States.

An interesting parallel between what Roosevelt did and what Bush has just done is in the proclamation each issued. Roosevelt said that these men who landed on our shore had violated "the laws of war." He should have said they had violated "the Articles of War." There are Articles of War. And it is possible to violate them. But there is no such thing as laws of war. It was entirely made up, and so, in fact, Roosevelt could do whatever the hell he wanted, cherry picking some evidence, avoiding other evidence.

In Bush's proclamation, just issued, he also used the phrase "the laws of war." The phrase had never been used between the two proclamations, 60 years apart. The attorneys advising Bush knew exactly what phrase they wanted him to use. And they wanted him to use it for exactly the same reason.

Those who landed at Atlantic Avenue Beach in Amagansett at 3 a.m. on June 12, 1942 came ashore with bad intentions - wooden boxes filled with dynamite, exploding pens, knives, maps and other documents. They buried all of this, including the Nazi uniforms they wore when they waded ashore, in the sand. Then they put on their disguise, which was fishermen's boots, rods and clothes and simply walked from the beach to the Amagansett railroad station and headed for the anonymity of Manhattan.

The goal of these saboteurs was to disrupt America's capacity to manufacture articles of war. By setting off explosions, they would disrupt the production of tanks, bullets, guns and warplanes. And they had their orders. They would blow up the Hell's Gate Bridge connecting the Bronx to Manhattan, the New York Reservoirs upstate, some Newark railroad terminal, Aluminum factories in St. Louis and Cleveland, the GE Plant in Syracuse, and various American department stores owned by Jews. And so they headed off to Manhattan, expecting to return to Amagansett to get their things as they needed them. In money belts around their waists they had more than $50,000 in cash (a huge sum) and the names of German sympathizers in America that they could contact, written in invisible ink on handkerchiefs.

The leader of the Nazis, George Dasch, later claimed that he had actually in advance made plans to turn the others in. He considered the whole thing fantastic and foolish, he said. He confided this to one of the others. And with that second person keeping an eye on the other two, he left the hotel where they were staying, went to the FBI office in Manhattan where he was turned away as a crackpot, then took a train to Washington where the FBI there took him in, listened to his story and then in a matter of days rounded up all the others. None of the eight ever blew up anything.

Roosevelt's choices as to what to do with these eight men (four who landed here and four who landed at Ponte Vedra, Florida) ranged from shooting them outright to letting them go. In between were three legal options. They were 1) have them tried in a civil courtroom 2) have them tried by a military court-martial or 3) something else.

When Roosevelt met with his advisors, he was immediately told that a civil trial was out of the question.

"At most, they will receive sentences of two years," his attorney general, Francis Biddle, told him. "Consider it. What have they done? Nothing. They can be convicted of violating immigration laws, and of carrying weapons without proper licenses. That's it. If a man buys a gun with the intention of killing somebody, even writes down that he will kill somebody, but then is arrested before he can do so, you can't charge him with murder, or even attempted murder. It's a minor charge at best in a civil courtroom."

The military court-martial was also ruled out. In spite of the uniforms - wearing them had been the idea of some Nazi crackpot lawyer involving enemy combatants - only two of the eight intruders were Nazi soldiers. Furthermore, two of the eight, though born in Germany, were legal American citizens who had only returned to Germany when it was apparent that Germany and America soon were going to be at war.

What to do? Roosevelt's overriding concern was that nothing like this should ever happen again. The head of the FBI, J. Edgar Hoover, who was at this meeting, said that it would be a disaster if Hitler learned that the saboteurs were only caught because two of them had turned the others in.

Roosevelt told the group he wanted to give Hitler a different message. Anybody they sent here to blow up America would be caught and put to death almost instantly. And he thought the American people would agree with him.

That left him only one option. He would create a new and special court of military men whose sole function would be to try these four men (and four others who landed on the sand in Punta Verde, Florida a few days later) and sentence them to death. And the testimony about the trial would be kept top secret.

Roosevelt asked Biddle if he would be the lead prosecutor in the proceedings. Everyone in the room was surprised at this. Biddle's job was to protect the Constitution and the rule of law. Nevertheless, he agreed to be the leading prosecutor. (It would be as if our current attorney general agreed to be the lead prosecutor in the Guantanamo trial.)

What they didn't count on was the legal mind of a Colonel named Kenneth Royall. Royall was a Harvard educated law professor who had joined the army for the war effort. President Roosevelt, looking for at least the appearance of fairness, appointed Royall as one of the two defense attorneys. Roosevelt got more than he bargained for.

When the trial began, Royall first wanted to know the obvious, which was by whose authority had the tribunal been created? He knew the answer to the question, of course. But he wanted the answer, which was that it was by a higher authority, the President of the United States, who was also the Commander in Chief of the Armed Forces.

Royall then wanted to know if his defendants would be allowed to appeal this decision to a higher authority if they did not like the outcome, and he was assured that they could do that. At that point, it was expected that Royall would ask once again who that "higher authority" was. But Royall did not do that. Instead, he let it hang over the whole ten-day trial that a "higher authority" might not be only the President, but also, perhaps, the Supreme Court.

Although Royall never did appeal the decision, later in the trial, as the confessions and the obvious evidence was laid out, Royall asked that the Supreme Court be asked if it was legal for the President to have created the court. Surprisingly, the prosecution did not object. And so, Royall asked for a three-day break so he could get one of the members of the Supreme Court to ask all the others - it was on summer break - to rule on that. He went at first to the summer home in Alexandria of Hugo Black, who agreed to see him, but then told him he had no interest in the case.

"Mr. Justice, you shock me. That's all I can say to you," Royall said as he left.

Royall then tried to contact Justice Felix Frankfurter, another prominent member of the court. But Frankfurter was not home. Finally, he went to the home of Justice Owen Roberts who said, "I do think you've got something here that should be reviewed."

First, however, Roberts told Royall that he would have to have a decision from a lower court. Royall, within the hour, got a decision upholding the President's tribunal from a lower court in the DC district. Thus Royall, later in the day, was able to return with a decision to be appealed.

Roberts accepted it. He now contacted the others by phone, and by the next day returned with the hurry-up ruling that in wartime it would be legal for President Roosevelt to create this special court in these special circumstances.

He also said that though the Supreme Court didn't have time to write up this decision, they would do so in October after the trial ended and when they returned from summer vacation.

The trial went on for four more days. During the last two of these days, the court agreed to a "special request" from George Dasch, the leader of the saboteurs, who wanted to argue that far from being a saboteur, he, along with Peter Burger, having turned in the others, should be regarded as American heroes. He had, in jail awaiting trial, written a document making this case. Could he read it? Of course, the judges said.

Royall, on Dasch's behalf, then asked that the court order a clerk to read this 212-page single spaced longhand written document. Although the court was taken aback by its size, they couldn't back out now. And so, they had it read aloud by a tag-team of readers over the next day and a half.

In the end, the military jury ordered that six of the eight saboteurs be put to death and the other two, George Dasch and Peter Berger, be given life sentences. So that is what was done. Roosevelt was furious about the two that were left to live out their lives, but he could not change the decision. Instead, Roosevelt made sure that the jailers would simply throw away the key.

Thus the landing of some German saboteurs in Amagansett intending to blow things up in America led to the creation of another "military tribunal" today, in the upcoming trial of the Al Qaeda six in an American courtroom sometime in 2009, long after Mr. Bush has left office.

It will have been eight years since 9/11. The outcome of this trial will be crafted by a new American president, from a decision made by the previous American president during the last lame duck year of his presidency. Thus are the legacies of administrations built.