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Saboteurs by Michael Dobbs (Alfred A. Knopf, 278 pages, $25)

One of the most controversial episodes of federal jurisprudence involves eight potential German saboteurs who landed on American soil early in World War II. Soon after coming ashore, they were arrested and found guilty by a military tribunal. They caused no injury to person or property. All cooperated with the Federal Bureau of Investigation. Yet six died in the D.C. Jail’s electric chair, including Herbie Haupt, a 22-year-old American citizen.

Saboteurs: The Nazi Raid on America, by Washington Post correspondent Michael Dobbs, is a well-researched and entertaining book. It also is timely, because the Supreme Court case arising from the affair, Ex parte Quirin, is cited to justify the continued detention of Taliban and al Qaeda suspects at Guantanamo Bay, Cuba, and Jose Padilla, the American citizen accused in a plot to use a “dirty bomb.”

Operation Pastorious (named after the leader of a 17th century group of German Quakers and Mennonites who settled in the New World) was doomed from the start, with unimpressive recruits and poor training. Dobbs tells how one Joseph Schmidt feigned gonorrhea in order to be dropped from the mission. Schmidt proved to be the savviest of the group.

The saboteurs split up and set off in two U-boats. The team that included leader George Dasch landed on Long Island the night of June 13, 1942. The beach was deserted, except for John Cullen, a young Coast Guardsman who happened by. Ordered to kill or take prisoner anybody who confronted them, in true Quaker spirit the saboteurs did neither. Instead, Dasch gave Cullen money, told him to forget the encounter, and let him go. As the saboteurs headed to New York by train, Cullen led investigators to the beach, where they found buried sabotage materials.

Soon, Dasch admitted to a comrade, Ernst Burger, that he was disillusioned with Nazi Germany and wanted to stay in America, where he formerly had lived. When Burger replied that he hated the Gestapo, the two decided to abandon the plan. Dasch went to Washington, checked into the Mayflower, called the FBI, and gave a lengthy statement. In a matter of days, all saboteurs were in custody.

Dobbs’ recounting of Operation Pastorious reads like a good novel. After chronicling the arrest of the principals, he turns his attention to the legal issues born of the matter, a part of the book that is only slightly less gripping. Dobbs writes of President Franklin Roosevelt’s “lifelong fascination with cloak and dagger,” which resulted in his intimate involvement in forming the legal process for the saboteurs.

According to Dobbs, FDR “wanted to use the case to send a very clear warning to Hitler to refrain from similar stunts in the future.” He decidedly was not worried about civil liberties. In a memo to then-Attorney General Francis Biddle, FDR wrote, “Surely they are just as guilty as it is possible to be and it seems to me that the death penalty is almost obligatory.” He also told Biddle, “I won’t hand them over to any United States marshal armed with a writ of habeas corpus. Understand?”

However, War Department lawyers concluded the maximum prison sentence the saboteurs could receive in a civilian court was two years. Furthermore, a Civil War-era Supreme Court case, Ex parte Milligan, held civilians could not be brought before a military tribunal if civilian courts were “open and properly functioning.” Only two of the saboteurs were in the German army. FDR evaded Milligan by issuing a proclamation that all persons entering the United States to commit sabotage would be tried by a military tribunal.

On July 8, 1942 — only 11 days after the last saboteur was arrested — a secret trial commenced at the Justice Department. The chairman of the tribunal had no legal background. Not that it mattered, since FDR’s order allowed the tribunal to admit any evidence having “probative value to a reasonable man.” The deck was so stacked that at one point Biddle (leading the prosecution) felt compelled to withdraw rank hearsay the defense had objected to, even though the tribunal had found it acceptable.

The trial ended on Aug. 1, 1942. All defendants were found guilty by the military judges, who recommended death sentences (with clemency for Dasch and Burger). President Roosevelt followed the recommendations. On Aug. 11, 1942, six saboteurs were executed. (Dasch and Burger were pardoned and deported in 1948.)

Dobbs gives lavish praise to Col. Kenneth Royall, a career JAG officer who defended seven of the saboteurs. (Dasch had separate counsel.) Although FDR made no provision for an appeal process, Royall filed a petition for a writ of habeas corpus to contest the lawfulness of the tribunal, arguably in contravention of his orders. The Supreme Court denied the petition, ruling that the military commission was lawfully constituted and that the saboteurs were in lawful custody.

Yet it was not until after the saboteurs were buried at Blue Plains that the Court issued its opinion. The Court noted Milligan involved a citizen already in America when he committed his crime. Conversely, the saboteurs (including citizen Haupt) entered the country as “unlawful belligerents” for hostile purposes. As such, held the Court, they could be denied access to civilian courts, just as FDR had ordered. Dobbs concludes: “Eight months after Pearl Harbor, none of the justices was willing to dispute the extraordinary war powers claimed by the president.” And, as FDR had hoped, there were no acts of sabotage on American soil during the war.

Quirin continues to resonate in the post-Sept. 11 era. By slapping the “enemy combatant” label on a suspect, the government has been able to severely restrict the civil liberties of persons in custody, including Padilla and hundreds at Guantanamo. Furthermore, with respect to “20th Hijacker” Zacarias Moussaoui, Quirin seems to allow the government to take its ball and go home — by dismissing the case pending in the Eastern District of Virginia and bringing the case before a military tribunal — if it is not happy with rulings of civilian judges.

Dobbs clearly did exhaustive research on both sides of the Atlantic. He interviewed the few surviving principals, including Coast Guardsman Cullen and Washington lawyer Lloyd Cutler (then a junior lawyer on the prosecution team). Dobbs provides tasty tidbits of local interest, such as how Dasch paid $6 per night at the Mayflower, and how the D.C. Jail’s electric chair, when not in use, was stored in the dining room in full view of the prisoners.

Saboteurs is the definitive work on the subject, as fascinating as it is informative. It will be enjoyed by anybody interested in the law, intrigue, or Washington history.

Patrick T. Hand is a Washington, D.C., attorney specializing in trusts and estates.

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