Vol. 13 No. 7 (July 2003)

NAZI SABOTEURS ON TRIAL: A MILITARY TRIBUNAL AND AMERICAN LAW by Louis Fisher.  Lawrence: University Press of Kansas, 2003.  200pp.  Cloth  $29.95.  ISBN: 0‑7006‑1238‑6.

Reviewed by Samuel B. Hoff, Department of History, Political Science, and Philosophy, Delaware State University.  Email: shoff@desu.edu .

In his latest book, Congressional Research Service Senior Specialist Louis Fisher describes the quick‑moving events surrounding the capture, trial and punishment of eight Germans who came to America during World War II to commit acts of sabotage.  Tapping a wealth of archival documents, including the massive tribunal transcript, Fisher evaluates the procedural and constitutional issues involved.   He insists that the latter episode must be contemplated in light of contemporary actions—including the post‑September 11, 2001 directive by President George W. Bush to authorize the creation of military tribunals to try non‑U.S. citizens who may have assisted al Qaeda terrorists—so as not to repeat a rush to judgment.

Chapter 1 of the book details the background of the sabotage plan, referred to as "Operation Pastorius."  The eight men selected for the mission were thoroughly familiar with America, as all had lived in the U.S. for several years before returning to Germany. The targets included aluminum plants in Tennessee, New York, Missouri, and Pennsylvania; the locks of the Ohio River between Pittsburgh and Louisville; and railroad connections in New Jersey and New York.

Chapter 2 depicts the landing of the Germans in the United States. One group of four came ashore at Amagansett, Long Island on June 13, 1942.  This group was quickly met by a Coast Guardsman.  Claiming to be fishermen, the Germans were eventually allowed to continue to New York City. However, the combination of the official's suspicion, the discovery of boxes of explosives and other items left on the beach, and the confession of one of the saboteurs to the FBI doomed the group's mission. The second group of four men landed at a Jacksonville, Florida beach on June 17.   After rendezvousing in Cincinnati, they split up, traveling to New York and Chicago.  This group was captured after two of the saboteurs visited members of their family in America, against the orders of the Nazi command.  Despite assistance by the Coast Guard and the saboteur who turned in his fellow conspirators, the FBI took sole credit for rounding up the Germans, all of whom were in custody by June 27, 1942.

Chapter 3 delineates the reasons why a military tribunal was established to try the Germans and how it would operate.  Less than a week after the last of the saboteurs was arrested, President Franklin Roosevelt issued a proclamation creating a military tribunal to prosecute the Germans.  Besides being Roosevelt's preference, the military court was seen as the best option, because it would prevent immediate notification to the public that German submarines had reached

American shores undetected and because it could recommend the death penalty for the perpetrators.   The proclamation forbid the Germans access to civil courts, directed the Attorney General to handle the prosecution, and permitted a two‑thirds vote for conviction and sentencing, all of which were inconsistent with existing judicial procedure.  Although defense lawyers petitioned for review of the constitutionality of President Roosevelt's proclamation, the request was rejected by a federal district court.  After nineteen days of hearings and two days of deliberation, the tribunal recommended death for all eight Germans.  Less than a week later, six of eight were electrocuted in Washington, DC.

In Chapter 4, Fisher reviews the manner by which the U.S. Supreme Court had become involved in the case of the German saboteurs.  After the district court had rejected the request to review whether the military court was properly constituted, the Supreme Court heard oral arguments on July 29 and 30.  The next day, July 31, 1942, the Court issued a short per curium opinion upholding the constitutionality of the proclamation.  It took until October 29 for the Court to complete a full written opinion explaining their decision.  Because the majority of the saboteurs were executed on August 8, Chief Justice Stone believed it was critical to have a unanimous opinion to justify the government's action.  Although such support was eventually achieved, several justices expressed misgivings about the matter.  The final holding in EX PARTE QUIRIN

(1942) upheld the chief executive's authority to create the military tribunal and distinguished the circumstances of the case from that of EX PARTE MILLIGAN (1866), where the Court determined that President Lincoln's use of a military tribunal to prosecute a U.S. citizen during the Civil War was unconstitutional.

Chapter 5 relays the immediate reaction to the EX PARTE QUIRIN decision and how it affected subsequent court rulings on the application of military tribunals.  As opposed to the positive public response to the Supreme Court's decree, the academic and legal community opposed the holding.  In later reflections on the case, Justice Felix Frankfurter stated that the "Quirin experience was not a happy precedent;" while Justice William Douglas found it "extremely undesirable to announce a decision on the merits without an opinion accompanying it."  Fisher finds that throughout World War II, U.S. "federal courts largely deferred to executive and military authorities" (p.144) and that the "broad scope given to military trials did not begin to narrow until 1955" (p.156).   After nearly fifty years, the specter of military tribunals "seemed quaint if not antiquated" (p.159).  But the events of September 11, 2001 changed that, reviving the issue as it pertained to punishing those who provided assistance to the terrorist attacks against America.  The authorization of military tribunals by the George W. Bush administration followed closely the precedent set by Franklin Roosevelt as far as the admission of evidence, vote required for conviction and sentencing, and the procedure for review.  Congressional hearings and an American Bar Association Task Force questioned the expansiveness of President Bush's directive.

Fisher contends that the creation of the military tribunal by President Roosevelt in the German saboteurs incident was "deeply flawed" (p.172) and that the United States seems to be duplicating the mistakes that led to the expedient execution of most of the aforementioned participants.  He clearly regards EX PARTE QUIRIN as a precedent not worth repeating, but one that must "be understood within the context of American constitutional law, the relations between Congress and the President, and the tradition of an independent judiciary" (p.175).

Other than Fisher's 2003 book examining military tribunals throughout American history, there are few other texts on the subject of the present text.  Rochelle Saidel's 1984 book had some coverage of the same 1942 German saboteur case, but employed much less documentation than is present in Fisher's book.  Barbara Olshansky's 2002 text looks at the history of military tribunals and offers a stringent critique of President George W. Bush's claims about the extent of the government's authority to prosecute suspected terrorists.  In its view of the Bush action, Olshansky's work shares the position assumed by Fisher.

Though the concluding chapter is short and could have been integrated into the preceding one, there are few flaws with Fisher's study.  His retelling of the 1942 incident involving the German saboteurs should renew interest in World War II and may result in a revision of thinking about how effective German intelligence and sabotage efforts were.  The personalities of the men, short training time, and lack of confidence among the saboteurs toward each other and the Nazi officials who planned the operation seemed to portend the mission's utter failure.

Additionally, Fisher's book is a timely contribution to the debate over military tribunals.  His study of the German saboteurs offers a stark reminder of how civil liberties may suffer during war time. He does not want the same thing to happen during the current “war” against terrorism, arguing against "any weakening of the constitutional rights of free speech and free press" (p.165).  To date, the United States intends to use military courts to try three alleged terrorists found in the country, so the issue will continue to receive attention and—with the assistance of Fisher's book—scrutiny.

REFERENCES:

Fisher, Louis.  2003.  MILITARY TRIBUNALS.  Hauppauge, NY: Nova Science Publishers.

Olshansky, Barbara.  2002.  SECRET TRIALS AND EXECUTIONS: MILITARY TRIBUNALS AND THE THREAT OF DEMOCRACY.  New York: Seven Stories Press.

Saidel, Rochelle.  1984.  THE OUTRAGED CONSCIENCE: SEEKERS OF JUSTICE FOR NAZI WAR CRIMINALS IN AMERICA.  Albany: State University of New York Press.

CASE REFERENCES:

EX PARTE MILLIGAN, 71 U.S. 2, 1866.

EX PARTE QUIRIN, 317 U.S. 1, 1942.

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Copyright 2003 by the author, Samuel B. Hoff.