Al-Qaida and Taliban detainees (or prisoners of war, depending on one’s perspective) being held and interrogated at the US Naval Base at Guantanamo Bay, on the eastern coast of the Communist Caribbean island nation of Cuba, will be facing some sort of trial, on a litany of charges, in the near future. US president George W. Bush Jr., Secretary of Defense Donald Rumsfeld, and other American federal government officials are adamant that the detainees’ treatment abides by the Geneva Convention, yet they have not classified these people as prisoners of war. Why? Because President Bush – and especially Attorney-General John Ashcroft – would prefer to see these al-Qaida and Taliban soldiers in custody facing judgement from military tribunals.
Attorney-General Ashcroft has based his legal arguments for military commissions for those kept in confinement at Guantanamo Bay on a past decision by the US Supreme Court. Ex parte Quirin 317 US 1 (1942) is the formal title of the decision, but it is more commonly referred to as simply the ‘Quirin Case’. The decision was handed down sixty years ago – when America was in the early stages of its participation in the Second World War – and the 1942 case, and its Hollywood-movie-like history, deserves closer examination.
During the night of June 13th, 1942, George Dasch, Ernest Burger, Heinrich Heinck and Richard Quirin – all native Germans in their thirties who had emigrated to the USA and then went back to Germany to work for the Nazi Party – were aboard an inflatable rowing boat that landed on the beach of Amagansett, Long Island. Their mission: to sabotage key industrial installations and corporations in America that were active in the production of various materials for the American war effort. Their landing was spotted by John Cullen, a Coast Guardsman, who was on patrol duty and confronted Dasch, just as the group was hiding their sabotage equipment and the German uniforms they had brought to ensure they would be treated as prisoners of war, if captured. Dasch kept Cullen quiet, briefly, by bribing him with $300 in American currency, and he and his cohorts found their way to Manhattan.
Cullen then told his superiors of his night-time adventure. When a Coast Guard search party found explosives in a seabag, and a hat emblazoned with a Nazi swastika buried in the beach sand, they realised that Nazi saboteurs had landed in America. The Federal Bureau of Investigation was notified and hundreds of agents joined the manhunt. A few days later Dasch went to Washington – while the other three men scattered through the US – and telephoned the FBI, apparently under the impression that, if he contacted the agency and acted as informant, he would receive a fairly light sentence. The rest of his team were arrested the next day.
Meanwhile, a second sabotage team – composed of Herbert Haupt (aged twenty-two), Edward Kerling (thirty-three), Herman Neubauer (thirty-two) and Werner Thiel (thirty-five) – had landed on Ponte Verde Beach, southeast of Jacksonville, Florida. They were also going to sabotage manufacturing plants in the US. These men succeeded in hiding their equipment, then splitting up and travelling to Cincinnati and New York. They did not, however, know that Dasch, who somehow during the long hours of interrogation had gained the impression that the FBI had promised him a Presidential pardon, was telling the FBI agents of their landing. They too were soon in custody.
President Franklin D. Roosevelt wanted all eight men found guilty and executed. He made a note of this to US Attorney-General Francis Biddle, who argued for the government in the Quirin Case, which was the first American military tribunal to be held since the US Civil War.
Compared with the detainees at the Guantanamo Bay Naval Base, the eight Nazis’ confinement in the early 1940s was relatively comfortable. All were imprisoned in the district of Columbia Jail and they were isolated from one another. Each man had his own cell. They were given hot meals, months-old newspapers and magazines, and even cigarettes. Of course, they had no matches or lighters; the cigarettes had to be ignited by prison guards.
The eight men were all tried together on July 8th, 1942, in Room 5235 of the US Department of Justice Building (a plaque on a wall outside the room now commemorates the military tribunal) There was a court reporter, but no newswire, newspaper, or radio reporter in the room. The windows in the walls of the room were covered with black curtains during the duration of the trial. Seven judges – all American military officers – listened to the case, the records of which have since been made available to historians.
Army Colonel Kenneth C. Royall, of Raleigh, North Carolina, was appointed chief defense attorney. As well as being a trial lawyer, Royall was also the boss of the Army’s legal sector which specialised in military contracts. He would later be appointed Secretary of War by President Harry S. Truman. Royall’s assistant defender was an interesting choice: Army Major Lausen H. Stone, the son of Harlan F. Stone, the US Supreme Court Justice.
The youngest member of the prosecution team was Lloyd Cutler, today a Washington DC-based attorney and former legal counsel to Presidents Jimmy Carter and Bill Clinton. Today, the Bush administration is using Cutler as a reference source, in building its legal basis for Al-Qaida and Taliban detainees. Cutler knows that Attorney-General Biddle, his boss in 1942, advised the president that a military commission was preferable to a civil trial, for the eight men, for three reasons: a military tribunal would be faster; it would have no newsmen present; and a two-thirds majority of judges could rule for a death penalty. Roosevelt approved of Biddle’s reasoning and then issued a loosely-worded proclamation on July 2nd, which made anybody believed to be a saboteur or affiliated with any act of sabotage open to face a military tribunal.
The defense attorney Royall was in a tough position. Being in charge of military contracts, he was well aware of the significance of the FBI’s reports of their interrogation of Dasch. He knew that these would-be saboteurs planned to bomb the Aluminum Company of America’s plants in Alcoa (Tennessee), East St Louis (Illinois) and Massena (New York); that they planned to blow up hydroelectric power plants in the Tennessee Valley and Niagara Falls; and to do damage to major railroad lines in the country, as well as other acts of sabotage. Royall knew of these corporation plants and their employees: they were not abstract names on pieces of paper. However, none of the accused eight had actually attempted any act of sabotage before being apprehended.
The North Carolina native attorney immediately began his defence by questioning the legality of the July 2nd proclamation from President Roosevelt and argued for a civil trial. Biddle quickly got up and brushed aside Royall’s opening remarks.
Cullen and Warren Barnes, who was in charge of the Amagansett Coast Guard Station, were the first two witnesses. Cullen formally identified Dasch, and Barnes identified all of the items left by the four Germans (such as a sailor’s bag full of explosives, which were later made powerless) that were used as physical evidence by the federal government attorneys.
Each of the eight accused testified on his own behalf. Dasch and Burger were the last two men to take the stand. Their testimony proved that they were both US citizens but that Burger had joined the Nazi Party aged 17, in 1923, while Dasch had taken up membership in 1941. Dasch’s failure to apprehend, harm or kill Cullen was noted to the seven judges. Also becoming known during the tribunal was the fact that Burger’s direct, precise answers to questions put to him by FBI agents were actually more informative than those of Dasch, the original informant.
Royall had one last card: he sought writs of habeas corpus for all eight Germans, as he again questioned the legality of President Roosevelt’s July 2nd order. The issue was taken to the US Supreme Court.
An emergency session was called on July 29th, despite the Justices’ summer vacation, to rule on this matter. (Remember that the verdict was yet to be decided upon by the seven judges of the military tribunal.) On July 31st, the US Supreme Court ruled in favour of Biddle. Chief Justice Stone delivered the opinion of the Court, which ruled 8-0.
One Justice, Frank Murphy, took no part in the consideration or decision in the case, as he had formerly been Attorney-General under FDR. One legal problem that had to be dealt with by the Supreme Court was the fact that all eight men were in full or partial German naval uniforms when they landed on American shores, then quickly changed into civilian clothes. So were they legally to be considered soldiers or civilians? The written opinion answered that question and sealed the fate of the eight Germans:
Our government, by thus defining lawful belligerents [from The Hague Convention of 1909] entitled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents not entitled to that privilege, including those, though combatants, who do not wear ‘fixed or distinctive emblems.’ And by article 15 of the Articles of War, Congress has made provision for the trial and punishment by military commission, according to ‘the laws of war.’
As though that wasn’t bad enough, Royall soon had more bad news: on August 3rd the military tribunal found all eight men guilty and recommended the death penalty. Four days after this, on August 7th, Roosevelt, wanting to finish the matter, ordered that the men be electrocuted – save Dasch and Burger, whose lives were spared for their confessions to the FBI.
The executions began at noon, August 8th, 1942. The six condemned men were buried in a paupers’ cemetery in Washington DC. Dasch and Burger were sentenced to life imprisonment, and each served in prison until 1948, when President Truman had them deported to Germany and their sentences suspended. Burger then disappeared from view; Dasch lived on until 1992.
- Mark Weisenmiller is a Florida correspondent for Agence France Presse, the international newsagency based in Paris.