Michael Dobbs - Saboteurs

The defense arguments were cut short by the need to return to the Supreme Court for the habeas corpus decision. At 11:40 a.m., McCoy declared a recess to allow both sides to keep their noon appointment in the shiny marble palace on Capitol Hill.

AS THEY mulled over Ex parte Quirin in the conference room, the justices were unanimous in concluding that they should do nothing that would interfere with the war effort. This was not the time to undermine the authority of the president. On the other hand, they were reluctant to overturn Milligan, as the attorney general seemed to want.

Although they agreed on where they should end up, the justices were divided about how to get there. Some of them, like Frankfurter, had little patience for abstract constitutional debates at a time when civilization hung by a thread. Others, like Roberts, were dubious about the legality of the president’s proclamation denying the saboteurs access to civilian courts. 20If they were going to preserve a public show of unanimity, they had to find a way of papering over these deep-seated differences.

As chief justice, Stone was a stickler for legal procedures and judicial independence. A few weeks earlier, he had turned down a request by Roosevelt to chair a government inquiry into the rubber crisis precisely because of his fervent belief in the separation of powers. While agreeing with much of what Biddle had to say about the nature of modern war, Stone was also impressed by some of the points raised by Royall. In particular, he felt that the government should abide by the appeals procedures for military courts outlined in the Articles of War. In order to draw attention to his concerns, he proposed including the following paragraph in the draft opinion:

Even if petitioners are correct in their contention that Articles of War 46 and 50 1⁄2 require the President, before his action on the judgment or sentence of the Commission, to submit the record to his staff Judge Advocate or the Judge Advocate General of the Army and even if that question be reviewable by the courts, nothing in the President’s order of July 2, 1942, forecloses his compliance with such requirement and this Court will not assume in advance that the President would fail to conform his action to the statutory requirements. 21

Translated into plain English, this was a way of serving notice on the president that he should comply with the Articles of War. But when Stone circulated the language at conference on Friday morning, some of his colleagues raised objections, on the grounds that it might cast doubt on the president’s powers. As the justices debated the question, the hands on the clock on the mantelpiece in the conference room crept around to noon.

There was no time to resolve the dispute before the court announced its decision. Reluctantly, Stone agreed to omit the controversial paragraph. A couple of minutes later, he and the other justices filed back into the great hall of the Supreme Court. The chief justice picked up two typewritten sheets and proceeded to read a “per curiam” decision, meaning that it was a consensus document on behalf of the entire court. Interrupted briefly by the roar of a low-flying airplane, he announced that the justices had concluded that the military commission was “lawfully constituted” and that the “petitioners are held in lawful custody.” 22

“The motions for leave to file petitions for writs of habeas corpus are denied. The orders of the District Court are affirmed.”

Surrounded by journalists on the steps of the court, Biddle pronounced himself “elated.” A disappointed Royall would say only, “The Court has acted.” 23In fact, the Supreme Court had acted in a very curious fashion. The justices had agreed on a verdict without agreeing on the reasons for the verdict, a reversal of normal procedure that would cause Stone and his colleagues great agonizing in the months ahead.

“I WANT to talk briefly about the individual cases,” Royall told the military judges, when the commission resumed work later that afternoon. He ran down the list of his clients, trying to say something exculpatory about each one. Kerling had “a triangular matrimonial difficulty” that helped explain why he was anxious to get back to the United States. His conflicting motives were sufficient to “raise a doubt” about whether he would have gone ahead with the sabotage plan. Heinck was just “a fellow who followed orders.” Although Quirin had displayed greater initiative than Heinck, he too had done nothing to carry out the plan. Neubauer had been severely wounded on the eastern front, and “was hardly himself when he got into this thing.” Thiel floated through life with little grasp of what was going on. Royall used a North Carolina mountain expression to describe his dim-witted client: a man who spent his time “chinking wood, to fill in between the chinks of log cabins.”

Before Royall could speak about his two other clients, Burger and Haupt, Ristine rose to urge the judges to acquit Dasch on all charges. He dismissed the prosecution’s argument that Dasch only went to the FBI because he was afraid of getting caught after his encounter with the Coast Guard on Amagansett Beach. Far from being afraid of Cullen, Ristine said, Dasch had allowed him to live rather than killing him in accordance with his orders. Everything that Dasch did was consistent with a “pre-arranged, thought-out plan on his part to come back to the United States and expose the whole thing and not carry it out.”

Ristine dismissed the prosecution’s complaint that Dasch had failed to report the sabotage plot to the proper authorities for six whole days, arguing that it took his client that long to calm his nerves. He reminded the judges that Dasch had telephoned the FBI in New York the day after he landed: he could hardly be blamed for the Bureau’s failure to follow up on this call. Ristine concluded by recalling the FBI’s offer of a presidential pardon for Dasch in return for a guilty plea. If the FBI believed that Dasch deserved a pardon, the military commission should too.

It was not until Saturday morning that Royall was able to wind up the case for the defense. In talking about Haupt, he emphasized his youth and thoughtlessness. Haupt, he told the commission, was a naïve American boy who got into trouble with a girl, and skipped out of town. “That is a bad thing to do, but it happens every day.” Through a chain of bizarre circumstances, Haupt had ended up in Nazi Germany, where he became desperately homesick. “He tried to get back to America, and this was the only way in which he could do so.” Once back in America, he had moved around quite openly. The only reason he did not immediately report to the FBI was that he was waiting for everyone to get together on July 6.

Turning finally to Burger, Royall reminded the commission that his client had cooperated voluntarily with the FBI, which never once challenged any of his statements. His mistreatment by the Gestapo suggested a compelling motive to leave Germany and secure his revenge by wrecking Operation Pastorius. “Can it be that Burger is in a situation where he can be put to death by Germany for being a traitor, as he certainly was, and put to death by us as a traitor?” he asked the commission. “That is an impossible situation.”

The last word went to the prosecution. Judge Advocate General Cramer reacted scornfully to the claim that at least some of the saboteurs viewed Operation Pastorius as a means of escaping Nazi Germany. Perhaps the defendants had been charged with the wrong offense, Cramer suggested sarcastically. If the defense version of events was to be believed, the charges should have been amended to read something like “In that, Burger and all the rest of these defendants, with intent to defraud the German government, did, in Quenz, Germany, in or about the month of May, 1942, unlawfully pretend to said German government that they, well knowing the said pretenses were false, and by means thereof, were saboteurs, and by means thereof did fraudulently obtain from the said German government the sum of $180,000 in money, four or eight boxes full of explosives, and a free trip across the Atlantic in a submarine.”