As defense counsel for all the saboteurs with the exception of Dasch, Royall recognized that he was in a tricky position. By emphasizing Burger’s role in wrecking Operation Pastorius, he was drawing attention to the passivity of his other clients. It was a clear conflict of interest that violated a fundamental concept of American justice: the right of defendants to separate counsel. Reflecting on the case six decades later, as the sole surviving member of the prosecution team, Washington lawyer Lloyd Cutler would conclude that this alone would probably have been “sufficient cause for a mistrial” in any normal legal proceeding.38
But a military commission was not a normal legal proceeding.
EVER SINCE the trial opened, tensions had been building within the government over who should take the credit for breaking the case. As the man who had announced the arrests of the saboteurs, J. Edgar Hoover was the public face of the investigation. On the third day of the trial, the FBI director went on the radio to denounce the saboteurs as “Nazi scoundrels,” boast that his G-men men had foiled “a diabolical scheme . . . to paralyze American industry,” and warn that Hitler would “try to send more destructionists to our shores.”39
Hoover’s attempts to grab all the glory for the FBI were deeply resented by other government agencies, particularly the Coast Guard, which felt that its men deserved at least some recognition. But whenever the Coast Guard tried to draw attention to the role played by Cullen and others, it ran afoul of the Bureau’s efficient and aggressive public relations outfit. Hoover’s top publicist was the energetic Louis Nichols, who had come to the FBI from the advertising industry and liked to tell his boss about the strong-arm tactics he used to slap down his bureaucratic rivals.
When the Coast Guard public relations people complained that Hoover’s radio script made no mention of Cullen, Nichols knew exactly what to do. After clearing his approach with Hoover, he told his Coast Guard counterpart, “on a purely personal basis,” that it would be very unfortunate if the whole story came out.40 If the Coast Guard insisted on making Cullen a hero, it might have a difficult time explaining why so little was done to raise the alarm, why the saboteurs were able to board a train to New York from Amagansett, why the FBI was not informed until a long time afterward. The FBI had avoided mentioning Cullen only because it wanted to save the Coast Guard “any embarrassment.” How the Coast Guard handled the matter was its own business, of course, but the FBI believed that “we have enough to do to fight the enemy without having fights among ourselves.”
For a while, everything seemed to go Hoover’s way. Nichols had a tame senator, James M. Mead of New York, propose a congressional medal for the FBI director, an idea enthusiastically seconded by Hoover’s main ally in the media, Walter Winchell. But then the Coast Guard struck back, in classic Washington fashion, with a leaked newspaper story:
OLD VEST HELPED
TO TRAP NAZIS
ON TRIAL HERE
Coast Guard Officer
Cracked Case With
Aid of N.Y. Police41
In the front-page Washington Post report, credit for breaking the case went to the Coast Guard, not the FBI. Cullen, “a department store delivery boy before he joined the Coast Guard,” had surprised the saboteurs on the beach. Cullen had then led Coast Guard intelligence officers to a buried arms cache, and a vest with a telltale laundry tag. The intelligence officers had tracked down the owner of the vest through “skillful detective work,” handing over a dossier on the case to the FBI, which proceeded to round up the saboteurs. The only thanks the Coast Guard had received from the FBI for its input was a demand from Hoover that the two intelligence officers be fired for “holding out the vest.”
Much of the account was fiction—the laundry tag on the vest had proved to be a false lead—but what most upset Hoover and Nichols about the story was the implication that the FBI’s role had been peripheral. While the presses were still running, Nichols demanded a correction, and the Post agreed to amend the headline to read: “Coast Guard Officer Cracked Case with Aid of N.Y. Police and FBI.” Unsatisfied with this minor victory, Nichols briefed the Bureau’s “established friends” in the media the following day. The beneficiaries of the counterleak included the New York Times, which ran a story headlined:
FEDERAL SERVICES
CLASH IN SPY TRIAL
Hoover of FBI Declares That
the Coast Guard Fails to
Cooperate Properly
VEST OF NAZI AN ISSUE
Officer and Others Alleged to
Have Retained the Garment
for Several Days42
By this time, Hoover was spitting mad. He rejected a truce proposal from the Office of War Information, which suggested a joint statement “approved by both the Coast Guard and the FBI setting forth the chronological developments of the case.” Such a statement, he told his aides, would only reward the Coast Guard, which “had nothing to do with this case other than to obstruct and interfere with it,” and was now putting out “false and erroneous stories.”43
The way to end the sniping, Hoover snapped, was “for the Coast Guard to shut up.”
THE BUREAUCRATIC warfare was soon forgotten as Americans, young and old, were swept up in what the press described as “the greatest manhunt in American history.”44 On July 25, the FBI announced a nationwide search for Walter Kappe, Reinhold Barth, and Joseph Schmidt, who were reported to be planning fresh sabotage missions against America. Hundreds of thousands of wanted posters were printed, and nailed up in public places. Soon saboteur sightings were coming in from all over the country.45
The Los Angeles office of the FBI received seventy-five tips the first day alone. A nine-state police alarm was ordered after the reported sighting of all three wanted men on Napeague Beach, Long Island, not far from Amagansett, but the suspects turned out to be street entertainers. The commanding officer of Fort Myer, Virginia, reported a rumor that Kappe had been inducted into the U.S. Army “under the name of Herbert Smith.” Foreign middle-aged men traveling in threesomes aroused particular suspicion. In Freeport, Long Island, three Norwegian seamen were detained after someone heard them talking animatedly “in German”; it turned out that their ship had been sunk by a German U-boat. In Boston, three Frenchmen were arrested, and only released after they proved that they worked for the French consul.
Suspects were hauled off trains, airline flights, and ships. Secretaries turned in their boyfriends, bus drivers reported on their passengers, elderly matrons scoured the public parks for anyone acting suspiciously. A Chicago woman wrote Hoover to complain about the “curious looking tramps” she had seen on a visit to Florida, “not the usual run of bums often seen during the past few years, but very distinctive looking ones” dressed in full “tramp paraphernalia.” One of these so-called “tramps,” she felt sure, was Joseph Schmidt.
Each sighting was duly investigated, swelling the FBI’s already voluminous files on Kappe, but none was ever corroborated. Which was hardly surprising: the suspects were all in Germany.
CHAPTER THIRTEEN
EQUAL JUSTICE UNDER THE LAW (JULY 29–AUGUST 1)
LAMBDIN P. MILLIGAN was one of those Americans, like Dred Scott and Ernesto Miranda, who lead unremarkable lives but are nevertheless destined to achieve immortality in legal textbooks. If it were not for the Supreme Court decision that bears his name, he would be forgotten entirely: a small-town lawyer from Indiana known to his friends as a fine conversationalist, an ardent supporter of states’ rights, and a Northerner who sympathized with the South during the Civil War. Lincoln supporters dubbed people like Milligan “copperheads,” after a particularly venomous snake that strikes without warning. But what made this particular copper-head a historic figure—and what made his case relevant to the case of the Nazi saboteurs nearly eight decades later—were the constitutional arguments that raged over his trial by a military commission.
Back in 1862, when the United States was fighting for its very survival, Lincoln issued a presidential proclamation
establishing military commissions to try “all Rebels and Insurgents” as well as “their aiders and abettors.” The decree effectively suspended the centuries-old legal tradition of habeas corpus that obliged the government to turn over suspected criminals to civilian courts for trial. Lincoln argued that it was sometimes necessary to resort to “otherwise unconstitutional” measures to save the nation and constitution, like cutting off a limb to save the body. The president’s opponents accused him of behaving like a tyrant. Under Lincoln’s decree, the authorities could sentence troublemakers to long terms of imprisonment or even death with a minimum of fuss. It was the perfect weapon to use against Milligan, who was suspected of conspiring with other copperheads to distribute arms to draft resisters. Within weeks of his arrest in October 1864 on charges of inciting insurrection and “giving aid and comfort to the enemies of the United States,” he was duly sentenced by a military commission in Indiana to death by hanging.
A lawyer himself, Milligan knew that his best chance of a reprieve was to appeal his “unlawful imprisonment” to the federal courts. By the time the case came before the Supreme Court, the Civil War was over, and radical Republicans were using the assassinated president’s 1862 decree to impose military justice on the newly conquered South. Milligan’s lead defense counsel was James A. Garfield, a future president of the United States. He argued that the government had violated the Constitution by imposing martial law in regions of the country far from the actual fighting. The Supreme Court agreed with Garfield, ruling that martial law could only be imposed in cases of obvious necessity, such as a foreign invasion shutting down the civilian courts. As long as the civilian courts were operating normally, as they were in Indiana in 1864, defendants were entitled to a civil trial. By a 5‒4 majority, the Supreme Court issued one of the most vigorous defenses of civil liberties in American legal history:
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism . . .1
While often criticized as being too sweeping, Ex parte Milligan had never been overruled. As counsel for seven of the eight saboteurs, Royall understood immediately that this seventy-six-year-old case offered the best hope of saving his clients from execution. Like Milligan and Garfield before him, he would appeal to the Supreme Court. The question was, how?
In normal times, appeals to the Supreme Court proceed according to a leisurely timetable. A case must wend its way through a multitude of lower courts—district court, appeals court, perhaps a state supreme court— before it becomes eligible for consideration by the highest court in the land. On this occasion, Royall understood that there was no time to lose: Roosevelt’s order setting up the military tribunal made no provision for an appeal process, meaning that a verdict could be implemented without delay. By the time the Supreme Court got around to hearing the case, the saboteurs could already be dead.
Royall knew that the quickest way of getting the Supreme Court to hear an appeal was to apply to an individual justice for a temporary writ asserting jurisdiction. But the Court was already in summer recess, and most of the justices were on vacation. Only one justice was available in Washington: Hugo Black, a Roosevelt appointee known as an ardent defender of civil liberties. Encouraged by Black’s reputation, Royall went to see him, and asked him to issue a writ to review the saboteur case in light of Milligan.
“You mean the case of these German spies?”2
“We don’t call them spies, but I suppose that’s the case you are talking about.”
“I don’t want to have anything to do with that matter.”
“Mr. Justice, you shock me. That’s all I can say to you.”
Royall tried to reach several other justices, including Felix Frankfurter, his old Harvard law professor, but they were all unavailable. On Monday, July 20, he read in the Washington Post that Justice Owen Roberts, a former federal prosecutor appointed to the court by Herbert Hoover, was in town to attend the funeral of a former colleague. In the absence of Chief Justice Harlan Fiske Stone, who was on vacation in New Hampshire, Roberts was the senior member of the Supreme Court in the Washington area.
Royall immediately went to the justice’s chambers and waited for Roberts to return from the funeral. Roberts agreed that the saboteur case raised important constitutional issues that merited review. Before taking any action, however, he wanted to consult his eight brethren, including Black. He invited Royall to come to his Pennsylvania farmhouse later in the week together with Biddle to discuss the case.
The following day, Tuesday, Royall and Dowell formally notified the military commission of their decision to appeal to the Supreme Court. They warned McCoy and his colleagues that there was a risk that some of the arguments developed behind closed doors in room 5235 could become public as a result of a Supreme Court hearing. Dowell, in particular, was worried that an open Supreme Court session would generate enormous publicity that could harm the war effort. “As a soldier,” he told the commission, “I cannot bring myself to the point of doing that.”3
Dasch’s lawyer, Colonel Ristine, said he had come to the case late, without fully investigating the constitutional issues involved. As a serving army officer, he did not feel he was “authorized” to appeal to the Supreme Court.
As they had at the beginning of the trial, Royall and Dowell were trying to strike a balance between their responsibilities as defense lawyers and their duties as military officers. They were giving their superiors a chance to order them back into line, on national security grounds. In the event, the military commission followed the example set by the president a few weeks earlier, when informed that the defense was planning to challenge his decree denying the saboteurs access to the civilian courts. After a short break, McCoy announced that “the Commission does not care to pass on that question.”
Once again, the two defense lawyers were on their own.
AFTER CONSULTING with the White House, Attorney General Biddle agreed to accept a full-scale challenge to the president’s proclamation. It seemed preferable to argue the case before the Supreme Court than to risk being accused of flouting the Constitution. On Thursday morning, Biddle and Royall flew to Philadelphia on a military plane. An FBI car met them at the airport, and drove them to Justice Roberts’s farm at Chester Springs, to the west of the city.
Roberts was a gracious host. He served the prosecutor and defense counsel crackers, cheese, and fresh farm milk as he listened to their arguments in favor of a hearing.4 He then invited them to take a tour of the farm while he got in touch with his colleagues. Stone had already agreed in principle to take the case. Roberts was able to persuade Black, who was staying with him as a houseguest, to drop his earlier objections. The other justices signaled their agreement by phone. By the time Royall and Biddle returned from their stroll, the question had been settled. The Supreme Court would interrupt its summer recess for the first time in twenty-two years, and convene in Washington the following Wednesday, July 29, to consider the saboteur case.5
Announcement of the decision was delayed until Monday evening, and greeted with general astonishment. The Washington Times-Herald hailed the extraordinary Supreme Court session as “a smashing climax” to the saboteur trial that would pit the authority of the judiciary against the power of the presidency.6 Not everybody, however, was happy. The trial had already dragged on for three weeks, far longer than most observers anticipated, and many people felt that it was getting bogged down in legal nitpicking. “There is nationwide grumbling over the length of time it is taking to convict the eight Nazi saboteurs who landed on our coasts from German submarines,” noted the Richmond Times-Dispatch. 7 “It is greatly to be hoped that the court will find no ground
for granting these writs, and that all the would-be dynamiters and murderers will be promptly executed, including the double-crosser who is said to be trying to save his skin by turning against his pals.”
Before the court could convene, it needed a decision it could formally adjudicate. Royall took care of that on Tuesday evening by filing writs for habeas corpus with a district court in Washington. Habeas corpus—Latin for “you have the body”—is one of the most venerable and venerated legal procedures in the Anglo-Saxon world. It prevents the king or other executive authority from holding people unlawfully by demanding that they be turned over to a legally constituted court. In the words of the Magna Carta of 1215, negotiated between King John of England and his barons, “no free man shall be taken or imprisoned . . . or exiled or in any way destroyed except by the lawful judgment of their peers or by the law of the land.” The Founding Fathers considered the principle of habeas corpus to be so important that they reaffirmed it in article 1 of the Constitution, rather than relegating it along with other civil liberties to the Bill of Rights. The Constitution states that “the privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion the public safety may require it.”
Filed on behalf of all the saboteurs except Dasch, the petitions for habeas corpus were couched in traditional, centuries-old language. “I am unjustly and unlawfully detained and imprisoned by color of the authority of the United States,” each petition stated. “Wherefore, I pray that a writ of Habeas Corpus be issued by this Court, directed to Brigadier General Albert L. Cox, Provost Marshal General of the United States Army, Military District of Washington, commanding him to produce my body before your Court.”8
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