Obama Should Forget about Habeas Corpus

How terrorists were dealt with by FDR
Excerpts from Roosevelt's Secret War: FDR and World War II Espionage, Joseph E. Persico, 2001.

On June 19 [1942] the President received an excited call from Francis Biddle, his attorney general. Six days before, Biddle told the President, "at 1:30 A.M. an unarmed Coast Guard patrolman near Amagansett, Montauk Point, Long Island, discovered two men placing material in a hole they had dug; one of them covered the patrolman with a gun, gave him $260 and told him to keep his mouth shut. I shall, of course, keep you informed." As J. Edgar Hoover's nominal boss, Biddle later recalled the FBI chief's demeanor while describing the plan to track down the rest of the saboteurs: "His eyes were bright, his jaw set, excitement flickering around the edge of his nostrils," Biddle remembered. The question now was how much to tell the public. Hoover wanted no announcement that might alert the men still at large. The President agreed, and the press was, for the moment, frozen out of the story.

FDR's longstanding preoccupation with sabotage now seemed validated. Biddle admitted, "1 had a bad week trying to sleep as I thought of the possibilities. The saboteurs might have other caches hidden, and at any moment an explosion was possible." [Saboteur] Dasch had, in fact, revealed that, along with their transportation and industrial targets, the Pastorius mission was supposed to spread terror by placing firebombs in department stores and delayed-action explosives in hotels and in crowded railroad stations.

On June 27, ten days after the Kerling team landed in Florida, the President, then at Hyde Park, took another call from Biddie. Hoover's G-men had seven of the saboteurs in custody and were about to arrest the last one. Nearly $174,000 of their Abwehr stake had been seized. FDR responded with the habitual geniality that Biddle, a stiff Philadelphia Main Liner, envied. "Not enough, Francis," Roosevelt said. "Let's make real money out of them. Sell the rights to Barnum and Bailey for a million and a half --- the rights to take them around the country in lion cages at so much a head." Now the tale could be told, and in the ensuing publicity, Coast Guardsman Cullen became a national hero. Hoover played the capture of the ring as a case solved by the FBI, making no public mention of the fact that Dasch had turned himself in and squealed on his comrades.

Three days after all eight saboteurs were in custody, FDR sent Biddle a memo making clear his expectations. "The two Americans are guilty of treason," he told the attorney general. "I do not see how they can offer any adequate defense. . . it seems to me that the death penalty is almost obligatory." As for the six German citizens, "They were apprehended in civilian clothes. This is an absolute parallel of the Case of Major [John] Andre in the Revolution and of Nathan Hale. Both of these men were hanged." The President hammered home his point once more: "The death penalty is called for by usage and by the extreme gravity of the war aim and the very existence of our American govemment." Biddle had never quite overcome his awe in dealing with FDR. Still, the nation's chief law enforcement official was troubled, finding himself trapped between the President's questionable pressure and his own reverence for the law. The Germans had been apprehended so quickly, Biddle recognized, that "they had not committed any act of sabotage. Probably an indictment for attempted sabotage would not have been sustained in a civil court on the grounds that the preparations and landings were not close enough to the planned acts of sabotage to constitute attempt. If a man buys a pistol, intending murder, that is not an attempt at murder." In a civilian court the Germans might at best be convicted of conspiracy, which Biddle estimated would carry a maximum sentence of three years. This outcome, he knew, would never satisfy Roosevelt.

FDR essentially took charge of the case. He told Biddle that he wanted the eight agents tried, not in a civilian court, but by a military tribunal, which he himself would appoint. They had forfeited any right to a civilian trial, as Roosevelt put it, because "[t]hese men had penetrated battlelines strung on land along our two coasts and guarded on the sea by our destroyers, and were waging battle within our country." They fell under the Law of War. A military tribunal would be quick, not subject to the protracted appeals procedures of civilian courts. It would not be hog-tied by the criminal courts' exacting rules of evidence. It could impose the death sentence, not as the civil courts required, by a unanimous verdict, but by a two-thirds vote. A military tribunal offered the advantages and the assured outcome that the President wanted. A civilian court was out of the question. FDR told Biddle, "I want one thing clearly understood, Francis: I won't give them up . . . I won't hand them over to any United States Marshall armed with a writ of habeas corpus. Understand!" Averell Harriman, FDR's special envoy to Moscow, had once described Roosevelt's "Dutch jaw -- and when that Dutch jaw was set you couldn't move him." Biddle practically felt the jaw's thrust, and dutifully followed the President's instructions. Conviction should be simple, Biddle promised FDR, since "[t]he major violation of the Law of War is crossing behind the lines of a belligerent to commit hostile acts without being in uniform."

The British, early in the war, had imposed the traditional penalty on captured spies and saboteurs, execution. Seven arrested German agents were hanged with numerous others awaiting the gallows within months of the war's outbreak. Then, in 1940, a thirty-year-old Scottish major, energetic, articulate, imaginative Thomas A. "Tar" Robertson, assigned to MIS, proposed a new approach. What use to Britain were German spies moldering in anonymous graves? he asked his superiors. Instead, make an offer to them, turn or die. Thus was born the Double Cross, or XX, operation whereby most captured spies chose turning to dying. Some became double agents and sent false information back to Germany under British control. In other cases, British radiomen mastered "the fist," the distinctive sending style of these agents, and convincingly transmitted Double Cross fabrications to Germany. Double Cross was a rousing success. Only one German spy is believed to have reached Britain during the war without being caught. The alternative of turning the eight captured Germans never entered FDR's head. Their deaths were to serve notice to the Nazis of the certain fate of any other spies and saboteurs sent to America.

On July 2 the President announced that the eight accused would stand trial before a military commission composed of seven generals, and they would be charged with violating the eighty-first and eighty-second Articles of War dealing with espionage, sabotage, and conspiracy. Court-appointed lawyers for the defendants made a game effort to move the trial to a civilian court, taking the constitutional issue all the way to the Supreme Court, but the justices backed the legality of a military tribunal. Biddle himself was to prosecute, an unusual move, having a civilian serve as prosecutor in a military proceeding. But FDR was taking no chances. The Army's Judge Advocate General was rusty and had not tried a case for over twenty years. FDR wanted his own man before the bar.

On June 8 the prisoners, held in the District of Columbia jail, were shaved by prison barbers, lest they put the razor to their own wrists or throats, and hustled into two armored vans guarded by gun-toting military police. Nine Washington motorcycle patrolmen roared alongside, escorting the vans to the Department of Justice. Enterprising vendors soon were doing a thriving business selling ice cream and hot dogs to the crowds that gathered outside the department's iron gate every day to gawk at the enemy. The trial was held in Assembly Hall # 1 on the fifth floor of the Justice Department, the windows shrouded by black curtains. As the trial opened, Hoover, sitting next to Biddle, fed pages of evidence to the attorney general. During a recess, one of the defendants asked the presiding general for a cigarette. The general responded stuffily that Army regulations made no provision for such a request. A disgusted Hoover took out a pack of cigarettes and handed it to the German.

In twenty-six days it was over. All eight were sentenced to death. The generals sent their verdict to the President. Roosevelt, acting, in effect, as the court of last resort, confirmed six of the death sentences, but commuted Burger's sentence to life and Dasch's to thirty years for their willingness to betray their comrades. August 8 was set for the executions, which would take place in the electric chair on the third floor of the District of Columbia jail. Eight weeks had elapsed from the night the first saboteurs had landed on Long Island.

On execution day, FDR was at Shangri-la [now Camp David] , the presidential hideaway in western Maryland's Catoctin Mountains. The President liked to sit in the small screened porch playing solitaire or gazing by the hour out at the Catoctin Valley, lost in his private thoughts. This evening, he gathered his guests around him in the living room -- Sam Rosenman and his wife, Dorothy, Daisy Suckley, Grace Tully, poet Archibald MacLeish and his wife, Ada. The First Lady was tied up in New York. The President settled into an easy chair and seemed in unusually fine fettle. He commenced his ceremonial role, mixing the cocktails. He was conceded to make a fine martini and an old-fashioned, though lately he had become enamored of a drink made of gin and grapefruit juice, which most guests found vile. As he mixed, he swapped jests with Rosenman and MacLeish while Daisy snapped photos.

Once more Rosenman was impressed by FDR's gift for shedding the cares of office after hours, as if flipping a switch somewhere inside himself The President began reminiscing about his days in the governor's office in Albany where Rosenman had served as his legal counsel, recalling stories of appeals for clemency on the eve of executions. Sam marveled at FDR's memory, down to dates, places, offenses, and names of the condemned in a dozen New York capital cases. The President then segued into an Alexandre Dumas story about a barber who, during the 1870 siege of Paris, supplied delicious beef while thousands were starving. Gleefully, FDR related how a number of the barber's clients had turned up missing, and the "veal" was suspected of originating in the barber's chair.

What prompted FDR's black humor this evening went unspoken until Dorothy Rosenman raised the subject. The six condemned Nazi saboteurs had been electrocuted beginning at one minute past noon. By 1:04 P.M., the work was completed, an average of ten and a half minutes per man. One witness reported that they had gone to their deaths stunned, as if in a trance. Where, Mrs. Rosenman asked the President, would the bodies be buried? He had not yet decided, FDR answered. His only regret was that they had not been hanged. He then launched into a story about an elderly American woman who died while visiting Moscow and had accidentally been switched in a casket meant for a deceased Russian general who was shipped back to the States. When her family complained, the Russian government cabled back, "Suggest you close the casket and proceed with the funeral. Your grandmother was buried in the Kremlin with full military honors." The saboteurs were subsequently buried in a potter's field near Washington.

Was the evening of gallows humor Roosevelt's true mood or intended to mask the hard decisions he had had to make about six human lives? Mrs. Rosenman's firsthand account describes nothing but Roosevelt's humor and relaxed manner, but then, he was a consummate actor. In any case, the country was with him. Telegrams poured into the White House mail room. One read, "It's high time that we wake up here in this country and show the world we are not a bunch of mush hounds." It was signed, "Mother who has three loyal sons in the Army." The Victory Committee of German American Trade Unionists telegraphed the President, "We endorse the imposition of the death penalty on any saboteur or traitor. We know that no loyal German American need have the slightest fear providing he obeys the laws of the country." On Ellis Island, the execution of the six Germans was observed differently. Adolph G. Schickert and Erich Fittkau, Germans interned there, held a meeting of other internees. They announced the death of their countrymen, called for two minutes of silence, and then led the singing of the rousing Nazi anthem, the "Horst Wessel Lied."