Michael Dobbs - Saboteurs

All this was very satisfactory to Roosevelt, who wanted to dispose of the saboteur case as swiftly and efficiently as possible. Hassett was faithfully echoing his master’s opinions when he noted in his diary, “Hanging would afford an efficacious example to others of like kidney. There’s no doubt of their guilt, but we are always too soft in dealing with spies and saboteurs.”

THE ESTABLISHMENT of a military tribunal meant that the saboteurs would have to be transferred to the custody of the army. After some discussion with Hoover and Biddle, army leaders decided that the Justice Department building in Washington offered the best location for the trial, including security, easy access, and plenty of space. In between court sessions, the prisoners would be held at the Washington, D.C., jail, one wing of which was transferred to the authority of the army.

Stimson summoned the provost marshal of the Military District of Washington, Brigadier General Albert Cox, to make the necessary arrangements. “In the last war a man named Grover Cleveland Bergdoll got away,” Stimson growled. 41“In this war nobody is going to get away. See Edgar Hoover and arrange for the transfer of the prisoners.”

The FBI director went to New York to supervise arrangements and get a firsthand glimpse of at least some of the saboteurs. He ignored Dasch, who was still bitter about the way he was being treated, but spent ten minutes with Peter Burger in his cell. When Hoover called on him, Burger had just finished a ham and egg sandwich, and was lying on his bed reading a historical novel set in the time of the American Revolution. 42His whole demeanor was one of passive resignation. He remained expressionless as one of Hoover’s aides formally charged him with attempted sabotage and violating the rules of war, crimes that carried the death penalty. Burger had been very helpful throughout the investigation, returning with FBI agents to Amagansett to point out things they might have missed on the beach. The plan was to rely on his evidence as much as possible at the trial, thereby avoiding emotional outbursts from the “wild” and unpredictable Dasch.

Late that evening, agents escorted all eight saboteurs in handcuffs to Pennsylvania Station, where an entire carriage had been reserved for them on the overnight train to Washington. At 6:55 the following morning, the train arrived at Union Station, where the prisoners were formally handed over to the army.

Another train was traveling toward Washington on the same railroad track, an hour or so behind the train carrying the saboteurs. Aboard the second train was the president, returning to the capital after a week at Hyde Park. For Roosevelt’s devoted companion, Daisy Suckley, it had become a familiar ritual. She noted in her diary that the president’s black Scottish terrier, Fala, jumped on the sofa next to FDR and snuggled up beside him. Orange juice and “delicious canapés” were served. Then “the usual bad night listening to the wheels go round.” 43At 8:30, everybody appeared for breakfast in Roosevelt’s stateroom. “The president said he had a bad night.”

“A tense Fourth of July,” Hassett noted in his diary. “War not going well.”

KENNETH C. ROYALL had been working in the legal affairs office of the War Department for less than a month when a White House messenger hand-delivered an order direct from President Roosevelt. The message instructed him to serve as defense counsel for the German saboteurs arrested by the FBI a few days before. Attached to the order was the presidential proclamation denying the defendants access to civilian courts.

As he mulled over the message, Royall quickly realized that he was caught in a quandary. He felt bound by the Manual for Courts-Martial, which stated that defense counsel “will guard the interests of the accused by all honorable and legitimate means known to law.” 1In order to defend his new clients properly, he knew he had to do everything in his power to get their case transferred to the civil courts. But this meant defying the wishes of his commander in chief, who had expressly forbidden any such move. After a brilliant career that included editing the Harvard Law Review and serving as a trial lawyer in his native North Carolina, he had joined the army as a colonel. He was now confronted with a choice between conscience and discipline.

He talked the matter over with the other military lawyer named in Roosevelt’s order as his co-counsel. Unlike the forty-eight-year-old Royall, Colonel Cassius M. Dowell was a regular army officer who had risen from the rank of private and was nearing the end of a spotless if unexceptional military career. He had little trial experience, but was an expert on court-martial procedures, about which he had written a book. Dowell listened carefully as Royall argued they had a duty to ensure that their clients got as fair a trial as possible. It was difficult to square this with a closed military tribunal with few of the usual procedural safeguards for the accused.

“So what do we do about it?” the older man asked. 2

Royall was in favor of writing a letter to the president, asking him to waive the restriction on appealing to the regular courts. He said he was prepared to sign the letter alone, as he did not want to get Dowell into trouble with the army. Since Royall would be returning to civilian life after the war, his own situation was different. To be kicked out of the army “for defending a client, no matter who the client was, would be about the best advertisement I could get,” he joked.

Dowell, however, wanted to sign the letter as well. As drafted by Royall, the missive was polite but firm, questioning the “constitutionality” of the order denying their clients “any civilian remedy.” The defense attorneys requested Roosevelt’s authorization to mount a full legal challenge to his own presidential proclamation. 3

The ball was now back in the president’s court. Short of backing down and withdrawing his order, he had three choices. He could summarily reject the defense counsels’ request. But as Biddle pointed out in a memorandum, this might “give the public the impression that the prisoners are not being given a fair trial.” 4He could authorize an appeal to the Supreme Court. Or, finally, he could say nothing, leaving the two colonels to wrestle with their consciences alone.

He decided to keep silent. He had his secretary, Marvin McIntyre, inform the colonels that the July 2 proclamation remained valid but that they should decide for themselves how to perform their duties.

“Is there anything else we can do?” Dowell asked Royall after the telephone call from McIntyre.

“I don’t know but one thing.”

“What’s that?”

“Write another letter.”

So they wrote another letter to the president, announcing their intention to challenge “the constitutionality and validity” of his order establishing military tribunals “at the appropriate time.” They concluded with a curt, one-sentence paragraph: “Unless ordered otherwise, we will act accordingly.”

The tribunal hearing was scheduled to begin the following day. Since they never heard back from the White House, the two colonels proceeded to “act accordingly.” First they had to get to know their new clients.

GENERAL COX had arranged for his prisoners to be held in the empty women’s section of the District of Columbia jail. Strict measures were taken to ensure that they were kept isolated from the outside world and from one another. The cell on either side of each prisoner was kept vacant so they would not be able to communicate through the wall. Guards watched them constantly through peepholes, and their cell lights were never dimmed. In order to prevent any attempts at suicide, they were given paper plates and cardboard spoons with their meals.