Friday, June 12, 2009
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.
