- The Washington Times - Saturday, May 17, 2003


By Louis Fisher

University Press of Kansas, $29.95, 220 pages


The Congressional Research Service, part of the Library of Congress, is filled with people who do fine work. Among the best is Louis Fisher, legal scholar and CRS senior specialist in Separation of Powers. Mr. Fisher combines a plain, effective style with a mature analytic sense. The result has been over three decades of books and studies that — blessings upon the taxpayer — actually inform and affect the real world. “Nazi Saboteurs on Trial,” which Mr. Fisher intends as a prelude to his definitive history of American military tribunals, is only the latest example.

This short, meticulously researched monograph assesses one of the stranger legal escapades of World War II. The facts of the case are not in question. What matters is how the military and civilian court systems performed, the interaction of the executive and judicial branches, and whether that episode should or could serve as precedent for the trial of terrorists and other “unlawful combatants” by military means.

Mr. Fisher’s answer: While such types do not and should not enjoy automatic access to the U.S. civilian court system and its protections, the use of military tribunals raises questions that cannot and should not be ignored.

The facts of the case are these.

In the 1941 “Sebold Affair,” the Federal Bureau of Investigation, with the help of William Sebold, a German turned American counterspy, rolled up over 30 Nazi agents. Adolf Hitler, perturbed, demanded that English-speaking saboteurs be dispatched to America, there to smash factories and railroads and Jewish-owned department stores, spread panic, and generally make themselves a nuisance. German intelligence, the Abwehr, didn’t think much of the idea, but deemed it prudent to keep the Fuhrer happy.

So they went out and recruited the original Gang that Couldn’t Shoot Straight: eight Germans who had lived in the United States (two of them naturalized citizens), but had returned to Germany in the ‘30s for various reasons. None was the brightest tree in the forest; group cohesion and mutual trust might be described as negative, at best. Still, the eight were given a few weeks’ training, then toted aboard two submarines.

In June, 1942, one group landed in New Jersey, the other in Florida. They came ashore in German uniforms, which would give them combatant status in case of immediate capture. They then changed into civvies, buried their tradecraft, and walked off with not much more than their ample moneybelts and orders to win one for the Fuhrer.

They were apprehended quickly, mostly because one of their number, George Dasch, called the FBI to let them know they’d arrived. Perhaps none of the men intended actually to commit any sabotage. None did. But that didn’t keep six of them from the electric chair that August, and two others from life sentences.

Justice, such as it was, came swiftly and questionably. President Franklin Roosevelt, taking a grim special interest in the case, determined to try them by secret military tribunal. He appointed the members and decreed himself the sole reviewing authority. Further, the tribunal would not be a standard court martial, governed by the Articles of War and other legislation. It would be an ad hoc commission, governed by the “laws of war” (a nebulous category) and empowered to make such procedural changes as it deemed expedient.

Among them: Although civilian and military courts could not impose the death penalty for actual acts of sabotage, this tribunal could, and did, for acts that were never committed, and may never have been intended.

Clearly, this setup raised numerous questions regarding the separation of powers, military jurisdiction in time of war, and of fundamental fairness. One of the defense attorneys petitioned the Supreme Court, which effectually evaded the issue until after the executions, then issued its opinion in Ex Parte Quirin — a document that did nothing for the luster of the Court, then or since.

In essence, concludes Mr. Fisher, the Supreme Court functioned as “an arm of the executive.” It reaffirmed that enemy combatants have no constitutional right of access to civilian courts; that the two citizens had forfeited their citizenship by taking up arms; and that when they took off their uniforms, they became “illegal combatants” who could have been shot out of hand, but who were graciously afforded a trial.

Finally, the Court held that it could not assess the trial itself, since that was secret.

In sum, a mixed set of precedents, ranging from common sense to dereliction of duty. And the question arises — will we be able to learn from the affair to make the handling and disposition of terrorists and other “illegal combatants” both more effective and more just?

Or will we be fortunate even to do as well?

Philip Gold is a Seattle-based writer.

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