The Best American Crime Writing

by Otto Penzler

  The votes of five of the commission’s seven members were required for conviction and sentencing. As Commander in Chief, the President would be the final arbiter of all commission recommendations. There would be no appeal.

  A MILITARY TRIBUNAL

  On July 4 the eight Germans were moved in secret from New York to Washington, where they were incarcerated in the District of Columbia Jail. Each man was isolated in a tiled cell, with an empty cell on either side of him, and was under surveillance around the clock. Clad only in pajamas and paper slippers, the prisoners were denied writing materials. They were allowed to read old magazines and newspapers and to smoke cigarettes lit for them by their guards. Current newspapers were forbidden, so that the prisoners could not learn of their fate. No man was allowed to talk to any other. They were given only paper spoons and paper plates with which to eat their meals—there was to be no opportunity for suicide. The men never asked to see clergymen or relatives.

  Room 5235 of the main Department of Justice building was ordinarily used by the FBI for lectures and films. On July 8, however, it became a military courtroom, its windows covered with heavy black curtains that blocked all daylight. At the front of the room that day, as the tribunal began, long tables were placed end to end to serve as the bench for the seven judges. To the left of the bench stood a witness chair, a small table for the court reporter, and tables for the prosecution and the defense. Behind the table for the defense sat all eight defendants, in alphabetical order, dressed in the clothing—suits and two-toned shoes—that they had bought during their brief time at large in the United States. Each man was flanked by guards. At the rear of the room were the buried clothing, the explosives, and the crates, all of which were to be entered as evidence.

  Each day of the trial the prisoners were transported from the jail to the Justice Department and back, in two armored black vans. FBI agents led the procession, and nine police officers on motorcycles followed alongside. Behind the prisoners’ vans were three Army scout cars with soldiers and machine guns at the ready. Each of the nineteen days that the men were summoned before the tribunal, the motorcade took a different, circuitous route to the Justice Department, where fifty soldiers stood guard outside the entrance. Hot-dog and ice-cream vendors set up stands to feed the curious.

  Colonel Royall opened his defense with a statement to the tribunal. “In deference to the commission,” he said, “and in order that we may not waive for our clients any rights which may belong to them, we desire to state that, in our opinion, the order of the President of the United States creating this court is invalid and unconstitutional …. Our view is based first on the fact that the civil courts are open in the territory in which we are now located and that, in our opinion, there are civil statutes governing the matters to be investigated.”

  Biddle was no less tough in his response. “This is not a trial of offenses of law of the civil courts, but is a trial of the offenses of the law of war, which is not cognizable by the civil courts. It is the trial, as alleged in the charges, of certain enemies who crossed our borders … and who crossed in disguise and landed here …. They are exactly and precisely in the same position as armed forces invading this country.”

  Royall argued that the articles of war cited in the charges applied solely to U.S. citizens caught aiding an enemy, and not to enemies themselves. He further contended that no evidence suggested that the men would have followed through with their plans for sabotage. They had not been trained for espionage, had only vague contacts through which to communicate with Germany, and had no plans to return home until after the war. In response Biddle cited the case of Major John André, the British officer executed during the Revolutionary War for passing through American lines with the intention of bribing an American officer.

  Lloyd Cutler remembers the opening arguments as a harbinger of what was to come. “Royall stood up and made an objection—a perfectly good one. The president of the court banged his gavel and said, The court will rise.’ Forty-five minutes later the court came back and said ‘Objection overruled.’ Then Biddle asked a second question, and the same thing happened. The court took another forty-five-minute break and overruled the objection. Royall got the message.”

  Coast Guardsman John Cullen was the first witness. After recalling the events of his encounter with the Germans, Cullen said he could identify Dasch only if allowed to hear his voice. When Dasch said, “What is your name?” Cullen positively identified him. In his cross-examination of Cullen, Colonel Ristine noted that Dasch had never attempted any violence against Cullen. After Cullen left the stand, Warren Barnes, the chief of the Amagansett Coast Guard station, identified all the objects found on the beach, including the clothes Dasch’s men had buried. Next an FBI munitions expert testified as to the type of the explosives.

  The next two FBI agents to testify seemed to strengthen Dasch’s case. Special Agent Charles Lanham stated that Burger had confessed that he and Dasch had never planned to follow through on the sabotage but instead had wanted to fight Hitler. Special Agent Norval Wills testified to the promise of a presidential pardon for Dasch in return for pleading guilty.

  Royall later called each of the Germans to testify in his own defense. Haupt testified that he had planned all along not to go through with the sabotage and to turn the others in on July 6, when he would know where they all were. Neubauer swore that he and Kerling had almost immediately come “to the conclusion that we would not have a chance to go through with our orders.” Quirin claimed to have developed doubts about the mission “on the submarine.” Thiel claimed that he would never have carried out acts of sabotage. During the trial, under interrogation by Biddle, Thiel and Neubauer claimed that they hadn’t turned themselves in to the FBI for fear of the alleged Gestapo infiltration, which would have resulted in dire harm to their families in Germany. Heinck admitted that even before going to the training farm he had understood that the work he was about to do in America was definitely sabotage.

  Meanwhile, the question of Dasch’s and Burger’s special status as collaborators with the U.S. government was also being discussed outside the tribunal. On July 16 Biddle wrote in a memorandum to Roosevelt,

  Dasch and Burger were helpful in apprehending the others and in making out the proof. However, up to now, they have refused to testify. The Judge Advocate General and I intend to ask the Commission to impose the death penalty on them because we think they had some intention to go through with their plans when they landed and are therefore legally guilty. If the Commission sentences all eight to death, we will probably be prepared to recommend that you grant some clemency to Dasch and Burger. At the very least, however, they should be detained a la Rudolph Hess until after the war. Burger wants no publicity if he receives clemency. He prefers death to endangering his family. Dasch, however, seems to prefer the publicity, and it might be useful to make him somewhat of a hero, thus encouraging other German agents to turn in their fellows.

  Dasch and Burger finally did testify. Dasch claimed that the sole reason he had entered sabotage school was to escape Germany, and Ristine again pointed out Dasch’s failure to harm Cullen, despite the orders he was under to subdue and take back to the submarine anybody he encountered. Burger was the last to testify; he said that he was an American citizen who had served in two National Guard units, earning two honorable discharges. After his return to Germany, he said, he quickly became disillusioned with the Nazi Party and began to plot a return to the United States. The lawyers defending him pointed out that he had cooperated with the FBI agents when they came to his hotel room, and that his interrogation had actually been more useful than Dasch’s, with far more detailed descriptions of the school for saboteurs and of his colleagues.

  After sixteen days in session the defense rested on July 27, and the six men other than Dasch and Burger signed a statement expressing appreciation for having been given a fair trial. In it they wrote, “Before all we want to state that defense counsel has represented our case unbiased,
better than we could expect and probably risking the indignation of public opinion. We thank our defense counsel.”

  But Royall wasn’t finished. Determined to challenge the President’s proclamation that the men should face a military tribunal, he sought to win his clients’ freedom by demanding a writ of habeas corpus. Though the Supreme Court had been adjourned for the summer, it convened in a special session on July 29 to consider the matter.

  Royall argued that Long Island and Florida beaches could not be characterized as “zones of military operation.” There had been no combat there, and no plausible threat of invasion. Royall argued that the civil courts were functioning, and under the circumstances they were the appropriate venue for the case to be heard. Biddle argued that the United States and Germany were at war, and cited a law passed by Congress in 1798 that stated, “Whenever there is a declared war, and the President makes public proclamation of the event, all native citizens, denizens or subjects of the hostile nation shall be liable to be apprehended … as alien enemies.”

  On July 31 the Supreme Court unanimously denied Royall’s appeal, writing, “The military commission was lawfully constituted … petitioners are held in lawful custody for trial before the military commission and have not shown cause for being discharged by writ of habeas corpus.”

  The members of the tribunal then deliberated for two days before reaching a verdict. Finally, on August 3, in accordance with instructions, the tribunal’s verdict was delivered—by Army plane—directly to Roosevelt, at Hyde Park, in four thick manila envelopes. It found all eight men guilty and recommended death by electrocution, but added, “In view of the apparent assistance given to the prosecution by defendants Ernest Peter Burger and George John Dasch, the commission unanimously recommends that the sentence of each of these two defendants … be commuted from death to life imprisonment.”

  On August 7 General Cox, the tribunal’s provost marshal, received instructions from President Roosevelt: All but Dasch and Burger were to be electrocuted at noon the following day.

  THE END OF THE AFFAIR

  Early in the morning of August 8, after the Germans had been fed a breakfast of scrambled eggs, bacon, and toast at the District of Columbia Jail, General Cox and an Army chaplain entered the cells of the condemned men and informed them of their fate. Each man turned pale and seemed stunned. None said a word. Burger was reading a copy of The Saturday Evening Post when Cox and the chaplain entered and told him he had been spared. Burger responded simply “Yes, sir,” and returned to his reading.

  As the morning progressed, military officers, Army doctors, the city coroner, and Army ambulances arrived at the jail. People moved quickly and said little. The mood was somber. Final adjustments were made to the electric chair—a red-oak device situated in a 12-by-18-foot execution chamber located on the top floor of the jail. Each condemned man would face a glass panel that appeared to him to be opaque, behind which would sit representatives of the tribunal and other officials. The witnesses were to include Major General McCoy, Hoover, and representatives of the War and Justice Departments. In alphabetical order, beginning with Haupt, the condemned men would be walked into the chamber and executed with 4,500 volts of electricity.

  The process began at noon. Each execution took no longer than fourteen minutes—the time required to administer the sentence, establish a time of death, remove the corpse, and ventilate the room for the arrival of the next man.

  After the final execution the tribunal reported to President Roosevelt that his orders had been carried out. Just before 1:30 P.M. an announcement was made by the White House press secretary, Steve Early, who reported that six executions had taken place. The six bodies were buried in a pauper’s cemetery at Blue Plains, in the District of Columbia, a site adjacent to the House for the Aged and Infirm and the Industrial Home School for Colored Children. Six wooden headboards—marked simply 276, 277, 278, 279, 280, and 281—identified the graves.

  Early also announced that by “unanimous recommendation by the commission concurred in by the Attorney General and the judge Advocate General of the Army,” the President had commuted the sentences of Dasch and Burger. “The commutation directed by the President in the case of Burger,” Early said, “was to confinement to hard labor for life. In the case of Dasch, the sentence was commuted by the President to the confinement at hard labor for thirty years. The records in all eight cases will be sealed until the end of the war.”

  Dasch and Burger spent some six years in U.S. prisons and then were deported to Germany in April of 1948. Burger subsequently disappeared and is rumored to have fled to Spain. In 1959 Dasch published Eight Spies Against America, a self-promotional and little-noticed account of the whole affair. He spent his final years working as a travel agent and a tour guide in Germany and enduring regular harassment in the places he lived, because of his role in the betrayal of his colleagues. In 1983 he was tracked down by an American college student named Jonathan Mann, who reported that Dasch “got all teary-eyed talking about how he facilitated the deaths of ‘those boys.’” Late in his life Dasch befriended Charlie Chaplin, who was living in exile in nearby Switzerland, and the two often compared notes on how J. Edgar Hoover had ruined their lives.

  Until his death, in 1992, in Germany, Dasch remained hopeful that he would receive the presidential pardon promised to him decades before. It never came.

  The editors at The Atlantic Monthly commissioned the “Keystone Kommandos” just after Bush signed the order allowing military tribunals to try foreigners charged with terrorism after September 11. Bush copied some provisions straight from President Roosevelt’s order, including closing the trials to the public, judgment by a two-thirds vote of the military commissioners, and no appeal.

  But legal scholars, members of Congress, and civil rights activists questioned whether Bush’s order was constitutional, pointing out that the legal precedent for tribunals is only during formally declared wars.

  My story had no political motivation; it was just meant to be a historical tale about the last time a military tribunal was convened. I think what I found most compelling were some of the parallels between the Al Qaeda terrorists and the hapless Nazis of 1942—their youth and inexperience, the rigorous training for the mission, even the fact that both sets of men seemed to enjoy their brief time in America. But history does not always repeat itself

  MURDER ON THE AMAZON

  DEVIN FRIEDMAN

  The Seamaster anchored in the wrong place. Claudio, on duty at the harbormaster’s office, watched it pull right past him. It moved past Alvaro, who was sitting on an overturned canoe, enjoying a morning bottle of wine, and João, who was loading a boat with cases of Coke and was soaked in sweat. It was ten o’clock on the morning of December 5, 2001, and the sun was already bleaching out the world. The Seamaster’s sails were down, and its motor was churning up deep contrails of white water as the 112-foot aluminum schooner plowed through the Brazilian Amazon, past Rita as she pinned up laundry along the river, and a man known as the Pig Farmer, who was buying lima beans at the grocery near the port. The Seamaster, with a crew of nine plus the skipper, Sir Peter Blake, was supposed to motor on to Macapá, a few minutes downriver. But they didn’t receive that message from the harbormaster because they were tuned to the wrong radio frequency. Instead they pulled into the port of Santana, the worst neighborhood in maybe two hundred miles. The Seamaster was anchored there for only a half hour before an officer from the port authority told them this was not a safe place to be, and the boat moved on to Macapà. But the Seamaster’s shipping agent, a fat and perpetually sweating man whose name is José Sansão Souza Batista, but who likes to be called Sam, says that their mistake changed the whole course of events. “I would think, if I was a spiritual person, that everything was concurring for this boat to have an encounter with death,” Sam says, with the benefit of hindsight.

  “Everyone knows the boats that come in and out of here,” says Alvaro, who was drinking the wine. “We all pay atten
tion. This is what it is to live in this town.” João, who was loading the Coke, says there was a lot of talk about the Seamaster. “We have yachts come through here all the time, but this was a strange-looking one. Everyone thought, This person is very rich.”

  Among the others who took an interest in the Seamaster were six men who would later be called pirates in newspapers all over the world: Ricardo, Isael, José, Reney, Rubens, and Josué. They were known to hang around the docks, where they’d pick up the odd job or smoke a few cigarettes or get drunk in the saloons at night. Ricardo, a 22-year-old from Santana, would later say, “We saw the boat and we were thinking, This is a rich tourist. There will be a lot of American dollars. And so we thought, Let’s go see this boat.”

  Santana is not geared for tourists—there are lots of boats moving through the port, but almost none of them are yachts carrying foreigners looking for rum drinks and beaded necklaces. The only regular visitors are the crews of giant, rusty freighters that stop to load wood pulp or manganese. A bartender at one of the dirty saloons that crowd the port area says he makes a good deal of his money from Greek and Russian sailors. He says there are ten people ready to sell them a beer the second they descend the gangway, and at least as many ready to charge them for sex, rob them, or both. At night, you can see the whores congregate around the port wearing the international whore uniform: cheap, high plastic pumps and brightly colored short skirts.