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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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1936: Arthur Gooch, the only execution under the Lindbergh Law

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This date in 1936 marks the first and only occasion that the federal government hanged a (non-murdering) kidnapper under the Lindbergh Law.

Even before the notorious Lindbergh baby kidnapping case, the “snatch racket” of kidnappings for ransom had claimed a firm foothold among Depression-era America’s moral panics. The bill that would become known as the Lindbergh Law was actually introduced in Congress three months before little Charles Lindbergh, Jr. disappeared out the window of his New Jersey nursery. Its sponsors were Missouri lawmakers concerned that gang-ridden St. Louis was becoming a kidnapping hub, like the high-profile 1931 abduction of Dr. Isaac Kelley.*

The theory behind the bill — and this was particularly relevant to St. Louis, a border port right across from Illinois and accessible via the Mississippi River to the whole Midwest — was that kidnappers could more easily ply their nefarious trade by carrying their hostages over a convenient border and exploiting the respective states’ inability to coordinate with one another. By elevating interstate kidnapping to a federal felony, the idea was to put manhunts into the hands of the FBI, whose jurisdiction was the entire United States.

The Lindbergh case provided just the right impetus for Congress to advance into law a bill that might otherwise have died quietly in committee. There’s just something to be said for being the one with a plan at the right time … even though the Lindbergh baby was found dead four miles away from the house he was plucked out of, and probably never crossed a state line himself.

At any rate, the Lindbergh Law also made kidnapping alone a capital crime, even if the abductee was not harmed. And it is for this that Arthur Gooch ascended into barstool trivia.

Gooch’s life and case are the focus of this 125-page Master’s thesis (pdf), but the long and short of it is that Gooch and a buddy named Ambrose Nix were on the lam after busting out of the Holdenville, Okla., jail, and ended up heading south to Texas.

They committed a robbery in Tyler, Texas on November 25, 1934. The next day, while stopped with a flat at a service station in Paris, Texas — close by the Texas-Oklahoma border — two policemen approached the suspicious vehicle. In the ensuing struggle, Nix managed to pull a gun on everyone and force the subdued cops into the back of their own patrol car, which the fugitives then requisitioned to high-tail it over the Oklahoma border. There they released their captives unharmed. There had never been a ransom attempt.

A month later, Gooch was arrested in Oklahoma — while Nix died in the shootout, leaving his partner alone to face the music.

Arthur Gooch was a career criminal, and the fact that he violated the Lindbergh Law was easy to see, but his crime also wasn’t exactly the scenario that legislation’s drafters had foremost in mind. In fact, Gooch also underscores one of the oft-unseen dimensions of the death penalty in practice: the discretionary power of prosecutors and judges at the intake end of the whole process.

Gooch attempted to plead guilty to his charge sheet, but his judge, former Oklahoma governor Robert Lee Williams, refused to accept it. Williams was explicit that his reason was that the Lindbergh Law’s language required a jury verdict to impose a death sentence.

By contrast, in October of 1934 — a month before the legally fateful confrontation at the Paris service station — a black farmhand named Claude Neal suspected of the rape-murder of a white girl was dragged out of protective custody in Alabama and taken across the adjacent Florida state line, where an angry mob lynched him. Despite the urging of the NAACP, FDR’s Attorney General Homer Stille Cummings completely refused to interpret Neal’s abduction as a Lindbergh Law kidnapping. The two cases even turned on the same phrase of the Lindbergh statute: interstate kidnapping “for ransom or otherwise.” While Cummings decided pre-emptively that “or otherwise” didn’t cover lynch law, one of his U.S. attorneys would go to the Supreme Court in January 1936 to argue for a broad interpretation of that phrase in the context of Gooch’s appeal.

But even without a comparison to Claude Neal’s murder, the justice of executing Arthur Gooch was hotly disputed by a vigorous clemency campaign. The chance intercession of a state line had elevated a small-time crime committed further to avoiding arrest into a capital offense, basically on a technicality. “It would be a rotten shame to hang that boy when a short jail term is his desert,” one Oklahoma City society woman argued to the Jeffersonian Club. “Gooch was given an application of the poor man’s law.” It seems clear that for Judge Williams as for President Roosevelt (who denied Gooch’s clemency appeal) the result was heavily influenced by the political exigencies of pushing a tough-on-crime standard, and by Gooch’s previous history as a crook. (He’d broken out of jail in the first place because he was a member of a group of local hoods in Okmulgee that committed several armed robberies.)

Gooch was philosophical at the end. “It’s kind of funny — dying,” he mused. “I think I know what it will be like. I’ll be standing there, and all of a sudden everything will be black, then there’ll be a light again. There’s got to be a light again — there’s got to be.” We can’t speak to what Gooch saw after everything went black, but it definitely wasn’t “all of a sudden”: Oklahoma’s executioner, Richard Earnest Owen, was an old hand with his state’s electric chair, but the federal execution method was hanging, which Owen had never before performed (and never would again). Gooch took 15 minutes to strangle at the end of the rope.


Arthur Gooch on the gallows

* The Kelley kidnapping, unsolved for several years, eventually traced to the strange character Nellie Muench. Readers (at least stateside ones) who follow that trailhead should be sure to keep an eye out for the cameo appearance of Missouri judge Rush Limbaugh, Sr. — grandfather of the present-day talk radio blowhard.

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Which U.S. Governors have overseen the most executions?

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This past week, Texas Governor Rick Perry notched his 250th execution. Writers, movie stars, guys who didn’t do it … Perry has executed them all.

That’s far and away the most for governors under the modern US death penalty regime. But is it an all-time record?

Rick Perry is number one.

The answer appears to be “yes”: a review of state execution data reveals no other governor throughout the U.S. constitutional era who even approaches Perry’s body count, at least not when it comes to peacetime civilian cases. Only two other men — Perry’s predecessor George W. Bush, and Depression-era New York chief executive Herbert Lehman* — appear to have signed off on as many as one hundred executions.

In attempting to explore this question, I compiled this rough list of the U.S. governors who have overseen a large number (35+) of executions. Emphasis on rough. The method I’ve used here is just a quick manual comparison of the historical U.S. executions recorded in the Espy file to U.S. governor terms as reported on Wikipedia. Then, I backed out known federal executions, which for most of U.S. history took place in various state prisons. (For instance, Ethel and Julius Rosenberg were electrocuted at Sing Sing in New York … but not by authorities of the Empire State.)

I would not suggest sourcing anything one depends on to the figures in this chart without further investigation and qualification; the list is certain to contain errors, including:

  • Omissions or mistakes by the Espy file itself.
  • Miscalculations or misdating on my part.
  • Governors who served non-consecutive terms who I’ve failed to identify.
  • Any consideration of governors who might have been temporarily incapacitated or absent during their term with another party exercising the relevant powers in their stead
  • Civil War executions, which I simply steered around

Beyond attributing numerical counts to date ranges, this list reflects essentially no state- or period-specific research: it’s worth bearing in mind that the legal context and gubernatorial authority relative to the death penalty vary over time and between states. A name and a number on this list is not the same as judging a governor personally “responsible” for all or any of those executions, not even necessarily to the extent of having signed off on a death warrant. It’s only in the late 19th century and into the early 20th century that states centralized all executions away from localities and into state penitentiaries, with the familiar appeal-for-clemency ritual. A given governor’s personal involvement in a given local execution prior to that (and particularly in antebellum America) is not to be assumed. Even now, some states (present-day Texas included) limit the ability of the governor to extend clemency, or vest that power in an agency.

Caveats aside, here’s that rough (rough!) list:

The large numbers here predictably map to large states (with lots of people to commit lots of crime and generate lots of death cases) and/or long-serving governors. Rick Perry is about to start his 13th year as Texas governor, and this is actually a remarkably long tenure. Most governors in U.S. history have held the office for surprisingly brief periods, just 2-4 years.

For example, post-Reconstruction Jim Crow Georgia executed at a terrific pace (routinely ten or more executions per year, for decades on end) and several of its governors therefore appear on this list … but those governors had what you might call limited upside, as they were term-limited to two consecutive two-year terms. Had Georgia ever put an executive kingpin in the governor’s mansion for a decade or more, that person would easily rank up there with Bush and Lehman. (Not with Perry, though.)

Typical office tenures have somewhat lengthened into the 20th and 21st centuries, but this is just when the execution rate itself has fallen off. Many of the larger (50+) execution totals come from the period when those two trends crossed in the first half of the 20th century, with men (Ann Richards, George W. Bush’s predecessor, is the only woman to show) running large states for five-plus years.

This confluence also leads to the interesting appearance of liberal lions among the 20th century’s most prolific American executioners:

  • Liberal “Rockefeller Republican” Thomas Dewey, with 95 executions as New York’s governor.
  • Dewey’s running mate in the “Dewey Defeats Truman” presidential election, Earl Warren: he sent 82 to the gas chamber in a decade as California governor before he was appointed to leave his lasting legacy heading a left-leaning Supreme Court
  • Franklin Delano Roosevelt, who okayed 51 executions as governor of New York (and then 16 more federal executions as president)
  • Gifford Pinchot, who’s best known as the progressive-era father of the Forest Service, but also spent eight years as Pennsylvania’s governor and oversaw 81 executions.

Feel free to chime in with corrections, data points, musings, and bootless speculations in the comments.

* Herbert Lehman was the son of one of the founders of Lehman Bothers investment bank. Bush was the son of the founder of the inexplicable Bush political dynasty. We’re guessing nobody thought of their prolific-executioner connection when the Bush administration let Lehman Brothers go bankrupt in 2008.

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