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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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1780: Major John Andre, Benedict Arnold’s handler

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On this date in 1780, the honorable British Major John Andre got what Benedict Arnold had coming to him.

Piqued that his (quite considerable) brilliance in the field did not earn honors he thought his due, General Benedict Arnold contrived to betray West Point to the British during the American Revolution — the plot that made his name a synonym for treachery.

As the scheme ripened, the turncoat asked Sir Henry Clinton for “a personal interview with an officer that you can confide in.”

Enter Clinton’s adjutant John Andre, head of British Special Intelligence.

The dashing officer, well-liked in society on either side of the permeable divide between Tories and Patriots on the continent, slipped into Haverstraw, N.Y. to make the arrangements. On his way back — when he already thought himself safely clear of American-held territory — he was nabbed with the incriminating documents.

The narrowly-averted betrayal was mirrored by the narrowest of escapes: luckily for Benedict Arnold, Andre was received in custody by a subordinate officer of his, whose initial report to Arnold alerted the general to his danger and enabled him to escape to the British a whisker ahead of the law.

Treason, of the blackest dye, was yesterday discovered. General Arnold, who commanded at West Point, lost to every sentiment of honor, of private and public obligation, was about to deliver up that important post into the hands of the enemy. Such an event must have given the American cause a dangerous, if not a fatal wound; happily the treason has been timely discovered, to prevent the fatal misfortune. The providential train of circumstances which led to it, afford the most convincing proofs that the liberties of America are the object of Divine protection.

It was a gentlemanly war, and Andre didn’t seem like the guy to hang in the whole exchange. But his argument before a court-martial that he was merely availing “an advantage taken in war” by agreeing to talk to an enemy general who wanted to hand them the keys to a fort didn’t fly: he’d been behind enemy lines, out of uniform, sneaking around. That made him a spy.

And the British refused to obtain Andre’s liberty by trading the man the Americans really wanted to execute.

Instead, by year’s end, the hero of Saratoga was commanding redcoats in the field — perhaps a little nervously; when he asked a captured American what might happen to him should he be taken, the reply was “Cut off your right leg, bury it with full military honors, and then hang the rest of you on a gibbet.”

John Andre was left holding the bag, to the dismay of just about everyone American and British alike. This extended account of the luckless major’s last moments* is from the pen of Continental Army surgeon James Thacher.

Major Andre is no more among the living. I have just witnessed his exit. It was a tragical scene of the deepest interest. During his confinement and trial, he exhibited those proud and elevated sensibilities which designate greatness and dignity of mind. Not a murmur or a sigh ever escaped him, and the civilities and attentions bestowed on him were politely acknowledged…

The fatal hour having arrived, a large detachment of troops was paraded, and an immense concourse of people assembled; almost all our general and field officers, excepting his excellency [George Washington] and his staff, were present on horseback; melancholy and gloom pervaded all ranks, and the scene was affectingly awful … Major Andre walked from the stone house, in which he had been confined, between two of our subaltern officers, arm in arm; the eyes of the immense multitude were fixed on him, who, rising superior to the fears of death, appeared as if conscious of the dignified deportment which he displayed. He betrayed no want of fortitude, but retained a complacent smile on his countenance, and politely bowed to several gentlemen whom he knew, which was respectfully returned. It was his earnest desire to be shot, as being the mode of death most comformable to the feelings of a military man, and he had indulged the hope that his request would be granted. At the moment, therefore, when suddenly he came in view of the gallows, he involuntarily started backward, and made a pause. “Why this emotion, sir?” said an officer by his side. Instantly recovering his composure, he said, “I am reconciled to my death, but I detest the mode.” While waiting and standing near the gallows, I observed some degree of trepidation; placing his foot on a stone, and rolling it over and choking in his throat, as if attempting to swallow. So soon, however, as he perceived that things were in readiness, he stepped quickly into the wagon, and at this moment he appeared to shrink, but instantly elevating his head with firmness, he said, “It will be but a momentary pang,” and taking from his pocket two white handkerchiefs, the provost-marshal, with one, loosely pinioned his arms, and with the other, the victim, after taking off his had and stock, bandaged his own eyes with perfect firmness, which melted the hearts and moistened the cheeks, not only of his servant, but of the throng of spectators. The rope being appended to the gallows, he slipped the noose over his head and adjusted it to his neck, without the assistance of the awkward executioner. Colonel Scammel now informed him that he had an opportunity to speak, if he desired it; he raised the handkerchief from his eyes, and said, “I pray you to bear me witness that I meet my fate like a brave man.” The wagon being now removed from under him, he was suspended, and instantly expired; it proved indeed “but a momentary pang.” He was dressed in his royal regimentals and boots, and his remains, in the same dress, were placed in an ordinary coffin, and interred at the foot of the gallows; and the spot was consecrated by the tears of thousands.

Thus died, in the bloom of life, the accomplished Major Andre, the pride of the royal army, and the valued friend of Sir Henry Clinton. He was about twenty-nine years of age, in his person well proportioned, tall, genteel and graceful. His mien respectable and dignified. His countenance mild, expressive and prepossessing, indicative of an intelligent and amiable mind. … considered as a skilful, brave and enterprising officer, and he is reported to have been benevolent and humane to our people who have been prisoners in New York. … The heart of sensibility mourns when a life of so much worth is sacrified on a gibbet. General Washington was called to discharge a duty from which his soul revolted; and it is asserted that his hand could scarcely command his pen, when signing the warrant for the execution of Major Andre. … Could Arnold have been suspended on the gibbet erected for Andre, not a tear or a sigh would have been produced, but exultation and joy would have been visible on every countenance.

Andre makes a sort of loyalist counterpart to Nathan Hale. Interestingly, Thacher’s account — in which he uses his old diaries for a book that was published in 1823 — footnotes an extended narration of Nathan Hale in a comparative vein, complaining that “whilst almost every historian of the American Revolution has celebrated the virtues and lamented the fate of Andre, Hale has remained unnoticed, and it is scarcely known that such a character ever existed.” Today, in terms of their public recognizability, the two are rather reversed.

* Andre was to have been hanged October 1, but the matter was stayed when a British deputation arrived under flag of truce to make one last parley for their man’s life.

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