Saboteurs: The Nazi Raid on America
By Michael Dobbs
Knopf
HC, 336 pg., US$25/C$38
ISBN: 0-3754-1470-3

Spies like us

By John W. Nelson
web posted August 9, 2004

On November 13, 2001, two months after the terrorist attacks
that brought down the World Trade Center, President Bush
signed an executive order authorizing the use of military tribunals
to try members of al-Qaida. Unencumbered by the legal niceties
of civil courts, such tribunals brought the promise of swift justice
to a nation that had quickly become as martial as it was
mournful. Yet, while America's armed forces were systematically
destroying al-Qaida and Taliban strongholds in Afghanistan,
America's critics – both at home and abroad – were busy
wringing their hands over a democratic power that had dared to
assert its right to self-defense, dismayed by the fact that we were
prosecuting a war and not a criminal trial.

For the detractors and doubters of American exceptionalism, the
specter of a military tribunal was but further evidence of the
lengths to which the current administration would go in the
pursuit of its brutish and simple-minded war on terror.
Sophisticates in the academy and the media – already
uncomfortable with a presidency that was openly guided by the
crude binaries of "good" and "evil" – were even more alarmed at
the perceived threat to civil liberties posed by such trials. The
New York Times castigated the proposed tribunals as a
"travesty of justice," while the Washington Post, awash in the
hyperbole of a campus broadsheet, likened them to "secret
courts by hooded judges in Peru."

For all the anxiety surrounding the tribunals, it's telling that nearly
three years after their authorization not a single one has taken
place. (The first preliminary hearings for the tribunals are
scheduled to begin the week of August 23, and the list of enemy
combatants deemed subject to the President's order continues to
grow and currently stands at 15.) While more thoughtful criticism
of the order may in part account for its protracted
implementation, equally compelling reasons for the
administration's deliberation might be found among the lessons
learned from historical precedents, specifically, the hastily-
formed military tribunal that tried and executed a ragtag group of
Nazi saboteurs in 1942.

Were it not for President Bush's executive order, the tale of the
eight German agents who stepped off a U-boat onto America's
shores with orders to bomb light metal factories, transportation
lines, and department stores ("Jewish-owned," of course) would
be but one of many lesser-known stories of the Second World
War. Over the past three years, however, an equal number of
books have appeared on the subject, the latest and most
engrossing being the work of Washington Post reporter Michael
Dobbs.

With lively writing and a novelist's skill for storytelling, Dobbs –
whose Down with Big Brother: The Fall of the Soviet Empire
was a runner-up for the 1997 PEN award for nonfiction –
captures the pace of the ill-fated Operation Pastorius, a mission
that went from start to finish in fifty-six days. Not counting the
time between their apprehension and their eventual appointment
with the electric chair, the men chosen to carry out Hitler's plan
to disrupt the American war effort had roamed freely on
American soil for a little less than two weeks. Yet, from the
moment the first group of saboteurs landed near Long Island on
the night of June 13, 1942, they appeared to be more adept at
sabotaging their own efforts: not only had the team failed to
return their navy fatigues to the submarine crewmen after
changing into civilian clothes, but various items of German origin
had been strewn carelessly on the beach. To make matters
worse, one of the men had instinctively spoken German during a
tense encounter with a young coastguardsman. Realizing that he
had stumbled into a dangerous situation, the unarmed
coastguardsman tried to beat a hasty retreat back to the station,
but not before George Dasch, the leader of the saboteurs, had
pressed a few hundred dollars into the frightened man's hand
with the promise that he'd be hearing from him again very soon.

Though the coastguardsman couldn't have known it at the time,
Dasch's remark was not so much a threat as a tip of his hand for
both he and his second in command, Ernst Burger, had no
intention of carrying out the Reich's orders. (It was Burger, in
fact, who had intentionally discarded the personal items on the
beach and dragged crates of explosives through the sand in the
hope that the tracks would lead to their discovery by the
authorities.) Both men harbored a growing hatred for Hitler's
Germany, though Burger's was far more visceral seeing as he
had been tortured by the Gestapo and imprisoned for criticizing
the actions of the German army during the invasion of Poland. By
the time the second group of saboteurs landed off the coast of
Florida four days later, Dasch and Burger had finalized the plan
that they would follow to turn themselves in to the FBI along with
their unsuspecting cohorts.

Dobbs's spirited account of the Nazi saboteurs is really two
stories: the first, a tale of undisciplined amateurs destined for
capture even if their plot hadn't unraveled from within; the
second is the story of the circumstances surrounding the military
tribunal created to prosecute them. What sets Saboteurs apart
from earlier books on the subject is that Dobbs strikes just the
right balance between them. (This is by no means meant to slight
Louis Fisher's well-researched Nazi Saboteurs on Trial: A
Military Tribunal and American Law. As a constitutional scholar,
Fisher's work is understandably concerned with the finer points
of law that would not fit comfortably in a work of narrative
history. Those interested in pursuing this subject in more detail
will find Fisher's bibliographical essay invaluable.)
 
If Dobbs doesn't linger on legal technicalities, it may be because
the trial refrained from doing so as well. In truth, the outcome
was predetermined; once Roosevelt learned of the arrest of the
saboteurs, he informed Attorney General Francis Biddle that the
death penalty was "almost obligatory" and warned: "I want one
thing clearly understood, Francis. I won't hand them over to any
United States marshal armed with a writ of habeas corpus.
Understand?" Biddle understood perfectly. Not only did he
agree with the need for a military commission that could mete out
the ultimate penalty and disregard any inconvenient legal
procedures that might deter it from that end, he chose to
prosecute the case himself fearing that it would end up before the
Supreme Court with inexperienced prosecutors from the armed
forces.

As it turned out, Biddle's fears were well founded. The writs of
habeas corpus filed by the defense had been rejected by the
district court as quickly as they were submitted, thereby opening
the door for a landmark Supreme Court hearing. Citing the 1866
Supreme Court decision Ex parte Milligan, the defense argued
that the defendants –some of whom had American citizenship –
could not be subjected to a military tribunal when civil courts
were open and functioning. But whatever the merits of the
defense's case, the Court knew that Roosevelt was prepared to
execute the saboteurs regardless of its decision, and with that in
mind the members acted in a manner more akin to theologians
than impartial justices. "In denying habeas corpus to the
saboteurs, and partially overturning Ex parte Milligan," Dobbs
writes, "they first decided what they should do, and then
searched for the legal texts to support their decision." The search
for those texts, however, would not be completed until three
months after the Supreme Court issued its ruling (Ex parte
Quirin) and six of the saboteurs had been summarily executed.
(Dasch and Burger received prison sentences for their
cooperation.)
 
Commenting on the Nazi saboteur case a decade later, Justice
Felix Frankfurter declared that the Supreme Court's decision
"was not a happy precedent." Given that the Court had
essentially abdicated its responsibility as part of an independent
judiciary by readily acquiescing to the wishes of a wartime
executive, that's as much an understatement as Justice William
Douglas's assertion that it is "extremely undesirable" to issue
decisions prior to providing reasons for them. For better or
worse, the Supreme Court is taking a different tack today.
Whatever face the military tribunals will have in the current war,
the judicial scrutiny that the executive branch is receiving almost
guarantees that they won't be of the FDR variety, namely, a fair
trial followed by a first-class hanging.

John W. Nelson holds a Ph.D. in German Studies from Rice
University. He can be reached at jwnelson2@hotmail.com.

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