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Saboteurs: The Nazi Raid on America
Spies like us
By John W. Nelson
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.)
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 email@example.com.
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