Michael Dobbs - Saboteurs

Pretrial meetings with defense attorneys took place in a reception area down the corridor from the cells. The saboteurs were isolated from the outside world, and had little idea what kind of case the FBI had been able to build against them. The defense lawyers did their best to explain the charges of espionage and sabotage and go over each one’s story, looking for weaknesses in the prosecution’s case.

Excitement mounted outside the District jail on the morning of Wednesday, July 8, as the army prepared to transport the saboteurs to the Justice Department, where the military proceedings would take place. This was the first time most Americans had a chance to see the Nazi enemy up close. It was quite a show. As the Washington Times-Herald reported breathlessly that afternoon, “All the drama, action and thrills that go with war, death and intrigue were written into a rapid-moving two hours today as eight Nazi spies were rushed from the Army-guarded District Jail to the Department of Justice building.” 5

Steel-helmeted guards with fixed bayonets had been posted at the gates of the jail since early morning. At 8:40 a.m., six policemen on motorcycles roared out of the gates, followed by a car bearing General Cox. Then an army transport truck full of soldiers, sirens blaring, machine guns pointed in all directions. Next, two black marshal’s vans, with soldiers mounted on the running boards, followed by another transport truck and more motorcycle outriders.

As the procession sped through Washington, from the Anacostia River to Independence Avenue, and across the Mall to Constitution Avenue, shouts of “There go the spies” and “Nazi rats” went up from the thousands of office workers lining the streets. From Constitution, the cavalcade turned right onto Ninth Street, and then made a left through the heavy iron gates of the Justice Department building, where Dasch had come to make his confession less than three weeks before.

As they sat in handcuffs inside the black vans, the eight saboteurs were shocked by the ferocity of the public reaction. 6Heinrich Heinck would later complain to his wife that “we are watched more carefully than vicious criminals. Handcuffs, machine guns, and so forth. The sirens scream loudly when we ride through Washington. You know what I think of America but now my dream and ours has been destroyed.” Eddie Kerling railed against American hypocrisy. When men like Nathan Hale in the Revolutionary War or Douglas MacArthur in the battle of Vera Cruz risked their lives going behind enemy lines, he wrote his friend Miriam Preston, they were hailed as “heroes.” But Germans on a similar mission for their country were denounced as “rats.”

The vans deposited the prisoners in the Justice Department basement, from which they were taken, by elevator, to a heavily guarded corridor on the fifth floor, screened from nearby offices by boarded-up glass doors. After reviewing several possible sites for a closed military trial, Hoover had persuaded the army that this one offered “the best set-up as far as safety and comfort of any in Washington.” 7The corridor could be sealed off from the rest of the building. During noon recess, the prisoners could be kept in cells in the basement. The hearing itself would take place in a long, narrow room previously used as a classroom for new FBI recruits. Everyone who entered room 5235 required a pass personally signed by both Hoover and Cox.

At precisely 10 a.m., the chairman of the tribunal, Major General Frank R. McCoy, gaveled the session to order, declaring, “The Commission is now open for the trial of such persons as may be brought before it.”

“Bring in the prisoners,” ordered General Cox. 8

Uniformed soldiers escorted the saboteurs to their seats along the wall closest to the corridor, between square pillars. On the wall opposite, heavy blackout curtains had been hung on the windows overlooking the courtyard of the building, preventing any daylight from filtering into the room. McCoy and his six colleagues—three major generals and three brigadier generals—sat on a slightly raised podium to the left of the accused, underneath an American flag and a green velvet drape that concealed a motion picture screen. Two small tables, for exhibits and court reporters, were placed directly in front of the judges, along with a chair for witnesses. The rest of the room, which measured about 100 by 20 feet, was taken up by two long tables, one for the prosecution, the other for the defense. The bright artificial lighting and sparse government-issue furniture gave the room an impersonal, even garish feeling.

While in jail, the prisoners wore striped pajamas, but they were allowed to change into their civilian clothes for their appearances before the tribunal. On trial days, they were shaved by a prison barber, and got dressed in their new double-breasted suits, snap-brim hats, two-tone shoes, and other fashionable items they had bought on shopping expeditions in New York, Chicago, and Jacksonville. As soon as they returned to the jail, they had to change back into their pajamas.

Government lawyers had combed the archives to find a precedent for a military commission, as opposed to the much more common court-martial, which was the way the military administered justice to its own members. They discovered that Andrew Jackson had used military commissions during the War of 1812, when he was in command of American forces at New Orleans. Military tribunals had been used frequently by both sides in the Civil War to punish such offenses as blockade-running, engaging in partisan warfare, or unauthorized trading with the enemy. In 1865, a military commission convicted Mary Surratt of conspiring with John Wilkes Booth to assassinate Abraham Lincoln, and sentenced her to death by hanging. After the Civil War, military commissions fell into disfavor in the continental United States, although they were reintroduced in Hawaii after Pearl Harbor.

GENERAL McCOY had hardly begun to swear in the officers of the court when Royall rose to challenge the authority of the military commission, preparing the ground for a later appeal to the Supreme Court. He described the president’s proclamation setting up the tribunal as “invalid and unconstitutional,” and quoted directly from Ex parte Milligan. As long as civil courts were “open in the territory in which we are now located,” they should have jurisdiction.

Biddle quickly rose to his feet. Dressed in a white linen suit and white dress shoes, the attorney general stood out sharply against the background of khaki uniforms. Sketching the government’s case in the simplest possible terms, he said the defendants were in “exactly and precisely the same position as armed forces invading this country.” As such, they had no “civil rights” worth considering.

After a long discussion about the proper role of military tribunals, McCoy called a recess. He and his fellow judges excused themselves for half an hour, “about the time it takes to smoke a good cigar,” in the phrase of Lloyd Cutler, a junior member of the prosecution team. 9On his return, the general announced curtly, “The Commission does not sustain the objection of the defense. Proceed.”

A distinguished soldier-diplomat, McCoy was the epitome of the “reasonable man” standard established by the president for the conduct of the tribunal. Like most of his fellow judges, he had no legal background. But he had impeccable military credentials. He served in the Spanish-American War with Theodore Roosevelt and was wounded in the Rough Riders’ charge up San Juan Hill. TR later described his protégé as “the best soldier I ever laid eyes on.” 10Determined to prevent the saboteur case from getting bogged down in technical legal wrangling, McCoy even objected to Royall’s use of the term “court” to describe the proceedings.