Book Reviews: In Time of War

• Author: COL David A. Wallace
• Pages: 07

IN TIME OF WAR1

REVIEWED BY COLONEL DAVID A. WALLACE2

Pierce O'Donnell, one of the leading trial lawyers in the United States, has authored a masterful and spellbinding book about an important but, until recently, obscure historical footnote from World War II-the German Saboteur Case.3 O'Donnell's book is meticulously detailed, thoroughly researched, and highly readable. For the judge advocate, In Time of War proves a ready source of background information to the terrorism challenges our nation faces today.

Throughout In Time of War: Hitler's Terrorist Attacks on America, O'Donnell provides the reader with a thrilling narrative about a nearly forgotten episode during the early years of World War II-a precarious and volatile time in our nation's history.

The facts of the case are straightforward and undisputed but read like a spy novel. In June 1942, two German U-boats, one off the coast of Florida and the other off Long Island, New York, landed eight Nazi terrorists under the cover of darkness. Hitler and his senior advisors were intimately involved in planning a once-secret mission, now known as Operation Pastorius.4 The mission's purpose was to fan out across the United States and destroy strategic transportation, manufacturing, and hydroelectric plant targets in a series of attacks that would create public panic.5

O'Donnell skillfully introduces the reader to each of the saboteurs. Although they all had different backgrounds and were from different segments of German society, they had one trait in common-long-term residency in America between the Great wars.6 Two of the eight

saboteurs were U.S. citizens and all were fluent in English.7 Of note, O'Donnell's description of the eight leaves the reader with the sense that Hitler's terrorists were a motley crew, not the best of the Third Reich, yet surprising in their resulting terrible successes.8

The author's fascinating narrative brings the hapless terrorists to life with insights into their training at a secret saboteur school,9 their journey across the ocean by submarine,10 their landing in America and, for one of the teams, their chance encounter with an unarmed, twenty-one-year-old Coast Guard Seaman Second Class John C. Cullen.11 Not long after arriving in the United States, the leader of the group, George Dasch,12

double-crossed his comrades and reported everyone to the FBI.13 All of the saboteurs were consequently and swiftly apprehended.

Of particular interest to judge advocates, especially in light of recent events such as the Guantanamo Bay detainee situation, is O'Donnell's account of President Roosevelt's decision-making process on how to treat the captured saboteurs. The President's Attorney General, Francis Biddle,14 realized there were three options for disposing of the case.15 First, the detained Germans could be treated as prisoners of war, given combatant immunity, and imprisoned for the duration of the war.16

However, treating the Germans as prisoners of war had little appeal. Doing so was not required under international law because the Germans had been caught in civilian clothes, thus making them unlawful

combatants.17 Although President Roosevelt could accord prisoner of war status as a matter of "grace," such an option was unsatisfactory. According to the author, Roosevelt needed a show trial to prove to the American people and Hitler that the United States could protect itself.18

Also, merely imprisoning the eight seemed like a weak, inadequate response to a serious act of terrorist aggression against the United States.19

The second of President Roosevelt's alternatives involved trying the six Germans in civilian federal court for violating a sabotage-related criminal statute, and charging the two United States citizens with treason.20 This option also proved unappealing to Roosevelt. First, only treason was punishable by death.21 The Espionage Act of 1917, the charging mechanism for the six German saboteurs, carried a maximum punishment of only thirty years' confinement.22 This assumed, of course, a successful prosecution. The author astutely highlights the concerns of the attorney general in this regard:

No actual acts of sabotage had ever been committed. A charge of attempted sabotage, the attorney general concluded, would probably not be successful in federal court "on the ground that the preparations and landings were not close enough to the planned act of sabotage to constitute attempt." . . . And an attempted act of sabotage "carried a penalty grossly disproporate to their acts - three years."23

In addition to the other shortcomings associated with a trial in a civilian court, a public trial would expose one of the truths about the case-the eight Germans penetrated America's defenses with ease and were only captured because Dasch proved to be a turncoat. FBI Director

J. Edgar Hoover and the FBI had orchestrated a media extravaganza taking credit for their "brilliant and swift" capture of the German spies.24

Finally, the saboteurs could be tried at a special military commission which was authorized to impose the death penalty for alleged violations of the law of war.25 According to the author, this option instinctively appealed to President Roosevelt for several reasons: Roosevelt could appoint reliable generals to adjudicate the case; he could authorize the death penalty for the saboteurs; the case would be tried swiftly without unduly cumbersome rules of evidence and procedure; and the trial could be held in secret.26 Roosevelt elected to try to saboteurs by military commission.27

To ensure the secrecy of the proceedings, the trial itself was held in a virtual "black hole" on the fifth floor of the Justice Department in Washington, D.C.28 The pseudo-courtroom was formerly used by the FBI as a lecture hall for training special agents.29 The windows were covered with black curtains and...