Category Archives: 20th Century

2000: Gary Lee Roll, pained

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On this date in 2000, Missouri put Gary Lee Roll out of his suffering.

A war veteran with no criminal record prior to the triple homicide that landed him in these pages, Gary Lee Roll came from — and, according to his remorseful last statement, failed — a stable and secure family.

He could trace his own tragedy back in 1973 when a botched operation by a U.S. Army oral surgeon left him with a life-altering pain in his jaw that would never go away. It eventually pulled him into a spiral of self-medication..

“It hurts to talk about it,” Roll said of the continual debilitating pain that afflicted most of his adulthood. “It affected my life so much. It changed me.”

One night in August 1992 Roll, his pain abated but his mind clouded by pot, LSD, and alcohol, persuaded two buddies to join him on a spur-of-moment robbery of a drug dealer. Our man barged into the place posing as a cop, and then reflected that he was liable to be identified by his victims. Before the trio fled richer by $215 and 12 ounces of pot, they’d left Sherry Scheper bludgeoned to death, her son Curtis, 22, knifed to death, and her other son Randy, 17, shot to death. (Randy was the one in the drug trade.)

As ill-planned as this sounds, and was, the killers were not detected for weeks afterwards, when one of Roll’s accomplices grew nervous about his situation and secretly taped our man admitting to the murder. Those tapes found their way into the hands of police.

The pain-wracked Roll entered guilty pleas and though not technically a volunteer for his own execution also showed little zeal to oppose it. “If I thought there was something I could say, I would say anything. But I don’t think there is,” he reportedly mused. His accomplices both received life sentences.

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1945: Seven German POWs

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On this date in 1945, the U.S. Army hanged seven German submariners for their “traitor slaying” of a Werner Dreschler at the Arizona POW camp they all inhabited.

Their victim Werner Drechsler had been captured when his U-Boat was sunk of the Azores. Having no great love for the Nazi government which had tossed his father in a concentration camp, Drechsler willingly went to work for the Americans as a mole in the POW camps, scavenging his captive countrymen for whatever particles of actionable intelligence they might be willing to blab to a fellow prisoner.

Parked in Fort Meade, Maryland, Dreschler’s war figured to be long over. However, a careless (or worse?) March 1944 transfer to a different POW camp at Papago Park, Arizona put the turncoat into a prisoner pool that included his former U-Boat mates, and these men knew that Dreschler was “a dog who had broken his oath.”

Mere hours after his arrival to Papago Park, a drumhead court had convened to “try” Drechsler in absentia and when his fellow Kriegsmariners doomed him a traitor, he was attacked, beaten senseless, and then hanged in a prison shower.

Helmut Carl Fischer, Fritz Franke, Gunther Kulsen, Heinrich Ludwig, Bernhard Reyak, Otto Stengel, and Rolf Wizuy, were sentenced on March 15, 1944 for carrying out this murder, and all owned the deed upon their honor as Germans and soldiers.*

Still, they outlived the war — cynically dangled, Richard Whittingham argues in Martial Justice: The Last Mass Execution in the United States, as bargaining chips to protect American POWs in Berlin’s hands, and then cynically released to the executioner when the Third Reich’s disappearance dissipated their value as prisoner swap currency. (Seven different German POWs had been executed earlier that same summer.) It was the least the U.S. military could do after having more or less tossed poor Drechsler into a pit of crocodiles.

“The trap was sprung on the first man at 12:10, and the last man went to his death at 2:48 a.m.,” read the bulletin in the Fort Leavenworth News, army paper at the Kansas penitentiary where our day’s principals paid their forfeit. (Via) “A new system for mass hangings has been devised at the institution which saved more than an hour in the procedure.”

But mass hangings too were going out of fashion faster than Hitlerism, and this great leap forward in the executioner’s efficiency has never since been required again at Fort Leavenworth.

* It wasn’t necessarily a given that duty to German martial orders would cut no ice with the western Allies.

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1962: LeRoy McGahuey, the last involuntary execution in Oregon

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The U.S. state of Oregon has the death penalty on the books, but hasn’t employed it on a non-consenting prisoner since August 20, 1962.

That was the date that former logger LeRoy Sanford McGahuey, with a shrug of his broad shoulders and the sanguine parting observation “That’s it,” paid in the gas chamber for the 1961 hammer slayings of his girlfriend and her son.* (He’s also the last of seventeen people executed by lethal gas in Oregon history.)

The late Oregon political lion Mark Hatfield, who was governor at the time, permitted the execution to go ahead despite misgivings about capital punishment. It was the only time he would ever be called upon to shoulder that burden: Oregon repealed its capital statutes in 1964 during the nationwide death penalty drawdown; Hatfield had moved on to the U.S. Senate by the time voters reinstated capital punishment in 1978. In an interview almost 40 years after the fact, Hatfield said that being party to McGahuey’s death still troubled him.

As Governor of Oregon, how did you resolve your legal charge versus your moral feelings about the death penalty?

Having been governor when we had an execution, I can tell you it still haunts me. However, when you swear to uphold the constitution of the State of Oregon you swear to uphold all of the laws — not just the laws you agree with. I felt there were too many examples in our history when people tortured the law or played around with it.

So if you were governor today, would you have commuted that death sentence?

I don’t know. I would have to wrestle with that. We experienced the repeal of the death penalty when I was Governor. After the first execution, I had my press secretary have as many press people there to witness it as possible; reporting it in all its gory detail. By making it a broadly based experience for all people — by not having it at midnight — we were able to garner enough support to get it repealed. Even though there were executions scheduled to happen during the hiatus time between when the law was passed and the time it took effect, I immediately commuted all the sentences. I believe it was seven. [actually, it was three -ed.]

Oregon currently retains the death penalty but has had a moratorium on executions enforced by its governors since 2011. Its only “modern” (post-1976) executions were in 1996 and 1997, and both were inflicted on men who voluntarily abandoned their own appeals to speed their path to the executioner.

* Technically, McGahuey was executed for the murder of the child, 22-month old Rodney Holt: he’d slain the mother, 32-year-old Loris Mae Holt, in a fit of passion, but he followed up by bludgeoning the tot with premeditation out of (as he said) concern for the boy’s upbringing now that he’d been orphaned.

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1909: Richard Justin, child batterer

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(Thanks to Meaghan Good of the Charley Project for the guest post. -ed.)

At eight in the morning on this date in 1909, Richard Justin was hanged at Crumlin Road Prison in Belfast, Ireland (now Northern Ireland) for the murder of his four-year-old daughter. Little Annie Thompson — she was born illegitimate, but her parents married a few months before her death — had died at their home at 84 Lepper Street in Belfast on March 12, supposedly from falling out of bed.

A myriad of witnesses, however, reported that Justin abused the child horribly. Her longtime nanny had noticed bruises, a swollen chin, a black eye and one tooth knocked out, but in February, before she could take any action, Annie was removed from her care. Others reported seeing marks and bruises on the child.

When concerned adults asked Annie how she had been hurt, she complained her father had hit and kicked her. People had also heard heartrending cries coming from 84 Lepper Street. One neighbor, for instance, testified she’d heard Annie’s mother wail, “Hit me, and let the child alone.”

The locals were reluctant to intervene in the family’s domestic problems, but after a Mrs. McWilliams saw that Annie’s “wee elbow” was swollen, her wrist was burned and “the skin was off her back,” she told Annie’s mother she was going to complain to the child abuse authorities. She decided not to, though, after Annie’s mother gave her word of honor that the abuse would stop.

It didn’t stop.

The very day of Annie Thompson’s demise, someone had written a letter to the Society for Prevention of Cruelty to Children, saying they’d been concerned about her for months and would someone please go to her house and check on her welfare? The anonymous writer added that he or she had meant “to drop you a note last week.”

Too little, too late.

From a forensic standpoint there was the autopsy, which revealed

a litany of injuries. These included some thirty bruises to the chest, arms, thighs and head, though most were several days old. Professor Symmers, who conducted the medical investigation, even went as far as to say they were the worst injuries to a child he had ever seen.

He actually compared her tortured remains to a case he’d seen where a man had been whipped 100 strokes with a cat o’ nine tails. The primary cause of death, however, was a brain hemorrhage

At Richard’s trial in July, ample evidence of child abuse was presented and the prosecution argued that Annie had died of injuries accumulated from the effects of months of beatings. The defense denied that the accused man had ever mistreated his daughter and argued that her death was an accident. Their star witness was Richard Justin’s oldest son, Richard Jr.

According to Richard Jr., he, his younger brother, and Annie were sharing a bed, the girl being closest to the wall. She woke up at 7:00 a.m. and started climbing over the boys to get out of bed, but tripped on the hem of her nightdress, fell off the bed and struck her head on the metal strut of her parents’ bed, an arms’ length away. Annie moaned and wouldn’t move after that. Richard Jr. picked her up and put her back in bed without waking their brother. Richard Sr. then found her lying dead two hours later.

When asked about this in court, Professor Symmers reluctantly allowed the boy’s story about Annie’s fall, if accurate, could explain the brain hemorrhage that had caused her death.

Nevertheless, the jury returned a guilty verdict.

“The defence,” writes Steven Moore in his book Hanged at Crumlin Road Gaol: The Story of Capital Punishment in Belfast,

with some justification, considered that Richard Justin hadn’t been given the benefit of what appeared to be reasonable doubt. There was a possibility, it was felt, the jury had believed him guilty of scheming to kill the child, and that the plot had not succeeded only because of an unfortunate accident. In other words, even if he hadn’t actually murdered Annie, there was no reason to consider him innocent when he had evil intent to the girl. A petition sent to the Lord Lieutenant asking for a reprieve was turned down.

A large crowd gathered outside the prison as Richard Justin was hanged, but there was nothing to see: his execution took place within the prison walls, and even the custom of raising the black flag at the moment of death had been abandoned. He reportedly “walked firmly to the scaffold and had shown great remorse for his crime.”

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1943: Gunnar Eilifsen, good cop

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Policeman Gunnar Eilifsen on this date in 1943 achieved the undesirable distinction of becoming the first person executed under the auspices of Norway’s World War II collaborationist Quisling government.

As an officer in Oslo, Eilifsen got himself in hot water with the Reichskommissar Josef Terboven when he supported several constables’ refusal to arrest girls who shirked the national labor conscription.

Terboven’s orders-must-be-followed jag was excessive even by the standards of a fascist puppet state, and a court told him to get lost. So, Terboven “appealed” by keeping Eilifsen in custody until later that day, when he arranged a do-over proceeding with handpicked judges and no defense.

The disobedient cop was shot the next sunrise. Three days later the dubious execution was retroactively legalized by a law subjecting the police to the military code, a measure sometimes sarcastically dubbed the “”Lex Eilifsen”.

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1944: Lucien Natanson

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Erwin Lucien NAUM-NATANSON, born in Bucharest (Romania), on April 5th, 1921, merchant, son of Julien and Jeanne SCHWARTZ, husband of Jeanine Hélène PROVOST, living in La Paute, killed in La Paute, on August 14th, 1944, around 21 o’clock.

The excerpt above from a report of judges and doctors of Le Bourg-d’Oisans on the executions inflicted by a German column in August 1944 comes from a family page compiled by a cousin of Lucien Natanson. Twenty-three years old and Jewish, Natanson had spent the war years laying low with his family in southeastern France until … well … read on.

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1944: Eliga Brinson and Willie Smith, American rapists abroad

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Privates Eliga Brinson (of Tallahassee, Florida) and Willie Smith (of Birmingham, Alabama) were hanged on this date in 1944 at Shepton Mallet prison.

The two U.S. servicemen had ambushed and raped 16-year-old Dorothy Holmes in Gloucestershire that April. Tried and sentenced by the U.S. military, their hangings occurred over 100 years after Great Britain abolished the death penalty for rape.

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1966: James French, fried

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On this date in 1966, James French went to the Oklahoma electric chair, clinching his spot in perpetuity on last-words listicles by cracking to the press pool, “Hey, fellas. How about this for a headline for tomorrow’s paper? French Fries!”*

French had enjoyed five years to work out this chill fare-thee-well since the calculated murder of his cellmate in 1961, back when he, French, was already serving time for murder.

It’s alleged that French committed this ruthless deed in pursuit of the mercy seat, as a form of suicide by executioner; whether this is or isn’t so he had certainly embraced the consequence by the time he presented himself to the judiciary.

“He deserved to die,” the expansive French once informed an interviewer. “And now because of what I did, I deserve to die, too. I don’t want to die. Who does? But the rules are clear: to take a life is to forfeit your own.”

It’s just that his letters imploring speedy implementation of justice could not override procedural errors in his first trial (they biased the jury by presenting French in manacles) nor his second trial (bad jury instruction by the judge) until the third time charmed in 1965.

The man could have lived a long life punning on his surname — perhaps he would have insisted on going by James Freedom as a post-9/11 America blundered into Iraq? — had he chosen to fight his death sentence, for even then the law’s French frying apparatus was grinding to a halt. Just two more executions — Aaron Mitchell and Luis Monge, both in 1967 — would take place in all the land before capital punishment went into a decade-long hiberation during which all previously existing death sentences were invalidated. French’s was the last death by electric chair until John Spenkelink in 1979 and the last ever electrocution in Oklahoma (which has used lethal injection in the modern, post-1972 era).

* His actual, and better, last words in the death chamber were by way of declining to make a final statement: “Everything’s already been said.”

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1941: Sheyna Gram and the Jews of Preili

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(Thanks to Meaghan Good of the Charley Project for the guest post. -ed.)

On this date in 1941, less than two months after Germany invaded the Soviet Union, fifteen-year-old Sheyna Gram and her parents and younger brother were murdered, together with approximately 1,500 Jewish people from the town of Preili in the occupied Latvian SSR. Nearly the entire Jewish population of Preili was wiped out by the ever-diligent Einsatzgruppen.

During World War II the Nazi death squads moved from town to town in Poland and Eastern Europe. They had one job and they performed it very well, slaughtering Jews and other “undesirables” by their thousands, most notably at Babi Yar outside of Kiev in Ukraine, where 33,771 people were killed in two days.

Preili, one of the oldest Jewish settlements in Latvia, was a much smaller community than Kiev; when the German invasion began, it had a population of less than two thousand, around half of whom were Jewish.

Latvia as a whole had a prewar Jewish population of just under 100,000. Only a few thousand of them survived, mostly those who were evacuated deep into Soviet territory and beyond the reach of the Wehrmacht. Of all the Jews in Preili, only six survived the war.

Preili was no different than any of the other Soviet Jewish communities wiped out in the Holocaust, but we know details about what happened there because Sheyna Gram left a diary behind. She chronicled the day-to-day events of the German occupation from June 22, the day the Nazis invaded the USSR, until August 8, the day before she and her family were killed.

Shortly after the war, noted Soviet journalists Ilya Ehrenburg and Vasily Grossman traveled all around the USSR, interviewing people and collecting eyewitness testimonies, letters, diaries, and other documents to bear witness to the Soviet Jewish experience during the German occupation. The result, titled The Complete Black Book of Russian Jewry, was the first major documentary work on the Holocaust. However, it wasn’t actually published until 1993, and even then it was nowhere near “complete.” In 2008, Indiana University Press translated and published The Unknown Black Book: The Holocaust in the German-Occupied Soviet Territories, which consists of accounts and documents that didn’t make it into the first Black Book; the second book is nearly as long as the first.

Among the documents included in the second volume is Sheyna Gram’s diary, translated from Yiddish. It somehow survived the war even though its author had not, and even seventy-plus years later, Sheyna has not been forgotten. Several books about the Holocaust in Latvia have referenced her diary, comparing its writer to Anne Frank, and at least one play based on the diary was performed in Latvia in around 2012.

Per The Unknown Black Book, the Gram family consisted of Itzik, a 60-year-old tailor, his 52-year-old wife, and their four children: sons Gutman, 18, and Leyba, 12, and daughters Freya, 20, and Sheyna. Evidence in the diary suggests they were not a particularly observant Jewish family.

The Unknown Black Book reports that Gutman survived the war, serving in the Red Army, but Yad Vashem’s Central Database of Shoah Victims has a page of testimony for him stating he was killed in military service. Although Mrs. Gram is unnamed in The Unknown Black Book, a search of the Database of Shoah Victims turns up a Sara Gram née Zangvil who lived in Preili and was the right age. The same person, Shmuel Latvinskiy, submitted Sara and Gutman Gram’s testimonies, and Sheyna’s as well; he names himself as Sara Gram’s nephew, Gutman’s cousin, and Sheyna’s relative, making it all but certain that Sara Gram was Sheyna’s mother.

What little information is available about Sheyna indicates she was an ordinary enough teenager. She was a good student, “an intelligent girl of good spiritual development,” and had just finished the sixth grade at school when war broke out. She started her diary that very day with a few sentences, and wrote entries regularly until her death:

June 22. At twelve o’clock, the radio announced, “Germany has declared war on the USSR. At four o’clock this morning, German aircraft bombed several Russian cities.”

Toward evening, I went to Ribenishki [seven kilometers from Preili]. I sit by the radio all the time until midnight. They tell you how to protect yourself from an air raid.

The next day, Sheyna recorded that Daugavpils* had been bombed and “a state of siege has been declared.” Wanting to do her part to help with the war effort, she signed herself up for first aid lessons. “New people are coming into town all the time,” she wrote. “Each person has something new to report. The Germans are successfully advancing.” Over the following days there was an 8:00 p.m. curfew and various new rules: radios were confiscated, freedom of assembly was curtailed, and windows had to be covered.

By July 2, the Germans had arrived in Preili. The following day Sheyna wrote,

The first day went quietly. On the second day, the Germans smashed the shops and looted everything. They broke into the synagogue, hauled out the Torah scrolls, and trampled on them. In other streets, they go on various sorts of rampages. […] We are living in a state of great fear. Many Germans have stopped in our town. There are some proper gentlemen among them as well. They keep on reassuring us that they are not going to touch the workers. A decree is published that Jews and Russians do not have the right to fly their national flags. Walking on the street is permitted until 10:00 p.m., but no one dares poke their head out the door.

As per standard operating procedure, the Nazis ordered Jews to wear a six-pointed yellow star, “twelve centimeters wide and long. Men are to wear it on their backs, their chests, and their legs, just above the knee. Women will wear them on their chests and on their backs.” For the rest of the month, Jews were regularly rounded up for forced labor. Sheyna was assigned to a work party cutting peat; roll call was at five in the morning and work didn’t stop until 7:00 p.m.

Except when she was working, she didn’t leave home. She whiled away the empty hours sleeping, studying Russian, reading back issues of the Jewish magazine Yidishe bilder, and writing in her diary.

On July 27, she wrote:

This is a bloody Sunday for the Latvian Jewish people.

Morning. All the Jews in Dvinskaya Street are ordered to put on their best clothes, take some provisions with them, and go out into the street. Searches of the homes are carried out. At twelve o’clock, all the Jews are herded into the synagogue. One group of young Jews is sent to dig graves behind the cemetery. Then the Jews of two more streets are driven into the synagogue.

It is 3:30 in the afternoon. All the Jews are chased out beyond the cemetery and shot there. All 250 Jews: men, women, and children.

This is terrible. We did not expect things to end this way. The handful of survivors expects death at any moment.

Iossif Rotchko’s untranslated book about the Holocaust in Latvia describes in detail what happened that terrible day. According to his account, the killers were not German but Latvian, local collaborators, and he names names:

The unfortunate [Jews] were ordered to stop at a stone quarry. They were ordered to take off their clothes and remain in underclothes, then they were led to the edge of the pit by groups of 8-10 persons. The executioners killed them by firing at their backs, as if they were afraid to look in their eyes a final time. After all, they were neighbors. The killers were conducted to the killing ground by carts driven by the farmers I. Prikulis, J. Litaunieks, as well as others…

Whomever the perpetrators were, this was the first such massacre Sheyna was personally affected by, although she’d probably heard rumors of others. One of her friends had been among the victims, and she was understandably terrified. “We look at each other,” she wrote, “and are amazed that we are still alive.”

On July 30, she reported that the Germans had said “they are not going to touch the Jews again. They are satisfied with the 250.” She was skeptical, however, writing the next day:

Every day there are new persecutions, and there is no end in sight. We have lived this long, but we do not know whether or not we will manage to survive. They send Jewish girls to clean freed-up Jewish apartments for those who have been killing them. They do not take me. But when they clean out the apartment of my murdered friend Mery Plagova, which they are preparing for a police officer, I go. I gather up her photos and keep them with me. I cannot believe that my friends the Plagovas are dead.

The Jewish holiday of Tisha B’av on August 3 found the young diarist still contemplative.

I have never fasted on this day or ever fasted at all. Today, however, a week after the great catastrophe, after that bloody Sunday, when so many innocent victims fell, I have decided, keeping it a secret from the authorities, of course, to fast the entire day. At 1:30, they come to see me and register me for the peat work. Mama orders me to eat something, otherwise I will not be able to work. I obey her. Then they change the list and send my little brother instead of me.

Three days later the Gram family was ordered out of their apartment, but “there are no apartments to move to. It is as though we are living up in the air … Yet another commission comes and decides that we can stay where we are.”

August 8 was her last entry:

The peasants say that lots of airplanes flew over during the night. At seven o’clock we go to wash the floors of the police station. The boss is in a bad mood today. It rains the entire time. At twelve o’clock they arrest three Jewish representatives. They demand that they send thirty people out to work. Twenty-one turn up, leaving nine short. The commandant demands the nine; otherwise things will go badly. The nine have hidden themselves. We are all dreadfully worried.

Rain the entire day. They want to select nine other Jews, but he insists only on the ones from before. From the moment, the representatives are under arrest. No one knows when our sufferings will end. I feel as though the next awful thing is getting closer and closer to me.

Her intuition was right: the next day, the 1,500 Jews from Preili and the surrounding area were murdered in the Jewish cemetery, among them Sheyna, Itzik, Sara and Leyba Gram. The Unknown Black Book notes that Freya Gram survived for another week: she was “kept back after work that day by the commandant, who, when he had had his fill of her, had her killed on August 16.”

A memorial with Latvian, Hebrew and English text, marks the spot where the Preili Jews died. It was funded by David Silberman, a Holocaust survivor from Preili, and dedicated on August 8, 2004, sixty years almost to the day after the massacre. The central obelisk has a quote from Sheyna Gram’s diary, and buried beneath it is an urn with a list of the names of the victims, pieced together by the aforementioned Shmuel Latvinskiy, who wrote pages of testimony for the Gram family. Additional photos of the memorial can be seen at the bottom of this page.

* Sheyna calls this city by its Yiddish name, Dvinsk. An 832-page list of Jewish people from Daugavpils who died in the Holocaust can be found here.

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1942: Six German saboteurs

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Seventy-five years ago today, six German saboteurs were electrocuted in a Washington, D.C. jail … a failed World War II operation that bequeathed its target nation a controversial legal landmark.

On June 13 of 1942 — just eight weeks before they faced the electric chair — Herbert Hans Haupt, Heinrich Heinck, Edward Kerling, Herman Neubauer, Richard Quirin and Werner Thiel, all of them German nationals who had returned to the Fatherland after previous emigration to the U.S., were dropped by U-Boats along with two other men, Ernest Peter Burger and George John Dasch, in two quartets on the eastern fringe of Long Island and the Florida coast.

“Operation Pastorius” to sabotage war industries on the U.S. mainland would never even have time to get its land legs; spied in Long Island by a Coast Guard watchman whom they clumsily attempted to bribe, the agents scattered themselves to New York and Chicago. Burger and Dasch — who for this reason were not in the end electrocuted* — had their reservations about the Third Reich to begin with and guessed after the Coast Guard encounter where this fiasco was heading. They rang up the gobsmacked FBI to shop themselves and their comrades, enabling the feds to pick up the other six men in short order.

The eventual fate of the Nazi saboteurs is no surprise, but the means to obtain it was controversial then and remains so to this day.

On a substantive level, the Germans had landed in uniform for the explicit purpose of asserting POW status were they to be apprehended immediately; this didn’t cut much ice since all had then discarded their uniforms and attempted to melt away in the U.S. Attorney General Francis Biddle successfully cited the American Revolution precedent of John Andre, whom patriots hanged as a spy after detaining him out of uniform behind their lines. That they hadn’t yet done anything yet was a bit beside the point.**

Much thornier was U.S. President Franklin Delano Roosevelt’s order to try the Germans using a seven-member military tribunal that he conjured for this purpose, and seemingly with the objective of assuring the harshest possible sentence. (Bear in mind that these events transpired only months after Pearl Harbor.) Such a commission is explicitly anticipated by the U.S. Articles of War† whose 81st and 82nd provisions the saboteurs were charged with violating:

ART. 81. RELIEVING, CORRESPONDENCE WITH, OR AIDING THE ENEMY. — Whosoever relieves or attempts to relieve the enemy with arms, ammunition, supplies, money, or other thing, or knowingly harbors or protects or holds correspondence with or gives intelligence to the enemy, either directly or indirectly, shall suffer death or such other punishment as a court-martial or military commission may direct.

ART. 82. SPIES. — Any person who in time of war shall be found lurking or acting as a spy in or about any of the fortifications, posts, quarters, or encampments of any of the armies of the United States, or elsewhere, shall be tried by a general court-martial or by a military commission, and shall, on conviction thereof, suffer death.

However, the military commission did not seem very well in keeping with the American preference for regular jurisdictions as expressed by Ex parte Milligan, the post-Civil War decision forbidding the use of military courts anywhere that civilian courts are functioning.‡ The signal Milligan precedent formed the basis of a furious objection by Army defense lawyer (and future Secretary of War) Kenneth Royall, who fought his clients’ hopeless corner so vigorously that the doomed men signed a letter praising his efforts. (“unbiased, better than we could expect and probably risking the indignation of public opinion.”)

Already recessed for the summer, the Supreme Court hastily reconvened to cut this Gordian knot: the only forum of judicial review the case would ever receive. Its decision, Ex parte Quirin — titled after one of the defendants — spurned Royall’s Milligan claim and upheld Roosevelt’s statutory authority to determine this case for a military tribunal by a unanimous vote.

The court’s common front concealed a variety of stances on the reach of executive authority. While the whole court agreed that “Congress has explicitly provided … that military tribunals shall have jurisdiction to try offenses against the law of war in appropriate cases,” a concurring memorandum by Justice Robert H. Jackson — later famous for his role prosecuting the Nuremberg trials — proposed to carry the argument well beyond this point. Jackson claimed in a concurrence that he would eventually withdraw that “the Court’s decision of the question whether it complied with the Articles of War is uncalled for … it is well within the war powers of the President to create a non-statutory military tribunal of the sort here in question.” This was by no means the consensus of his colleagues.

The later publication of a “Soliloquy” memorandum by one such colleague, Felix Frankfurter, throws a less than dispassionate light on deliberations. Writing to smooth over internal disputes between the blackrobes, Justice Frankfurter shows himself personally hostile to the Germans — “You’ve done enough mischief already without leaving the seeds of a bitter conflict involving the President, the courts and Congress after your bodies will be rotting in lime,” he chides them in his own voice. “That disposes of you scoundrels.” In the end, the court took his advice to sidestep the potentially deep jurisdictional question.

But that question has not been left rotting in footnotes (they never are). Quirin in general and Jackson’s expansive claims of executive power in particular have been relied upon by 21st century Presidents to justify muscular and controversial innovations like the Guantanamo Bay prison and the drone war.

A few books about Operation Pastorius and Ex parte Quirin

Pierce O’Donnell, author of In Time of War: Hitler’s Terrorist Attack on America, discussed his book on C-SPAN here.

Jurisprudence is not the only artifact of the Nazi saboteurs’ failed infiltration.

Bizarrely, a tributary slab “in memory of agents of the German Abwehr” was discovered in 2006 illicitly placed on National Park Service land in southeast Washington DC, the same vicinity where the saboteurs had been secretly buried after their electrocution. There it had seemingly reposed some twenty-odd years, unknown but to its devotees … who if the stone’s carvings are to be credited must consist of the heirs of the (defunct since 1983) National Socialist White People’s Party, also known as the American Nazi Party.

* They would be condemned to death along with the rest, but Roosevelt commuted their sentences: a fine boon but far short of the outright pardons they had been promised for their cooperation. In 1948, President Truman had Burger and Dasch deported to Germany, where many saw them as traitors.

** After unsuccessfully attempting to trade Andre for Benedict Arnold, whose defection Andre had facilitated, and whom the American revolutionaries would have much preferred to Andre for a hanging.

† Enacted by Congress in 1920, these Articles of War are no longer operative in the U.S.: they were replaced by the Uniform Code of Military Justice in 1951.

‡ Haupt and Burger were also U.S. citizens, further complicating the commission’s suspension of their constitutional habeas corpus rights.

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