The Spies Who Came In From The Sea

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The most immediate menace to the Attorney General and his colleague General Cramer was a man named Milligan, who was long dead. In 1864 a Confederate sympathizer, Lambdin B. Milligan of Indiana, was arrested for pilfering munitions from Northern arsenals and sending them to the rebels. Denied a civil trial, he was speedily condemned to death by the military. However, President Lincoln was assassinated before he could sign the death warrant. Thereafter Milligan’s attorneys fought the case through to the Supreme Court. The Court unanimously awarded Milligan a writ of habeas corpus. But five of the justices did more than that. Going well beyond the scope of the case at issue, they ruled that if a statute had permitted trial of a civilian by a military commission, the statute would have been unconstitutional. The military could not try a civilian as long as the civil courts were functioning. Only if actual invasion had driven out the courts could the military take over, and Indiana had not been invaded.

Biddle, knowing the caliber of the defense attorneys, was sure that they would exhume Ex parte Milligan . When they did, would the President of the United States and two of his cabinet officers be humiliated, and would sabotage be virtually sanctioned, and would the American public be outraged, by the removal of the case to the civil courts, where the eight men who had come to destroy would receive punishment of a kind given to purse snatchers?

The trial opened on July 8 in a long room on the fifth floor of the Justice Department building. The windows were swathed with blackout curtains. All of the defendants—who had confessed after their exhibitions of innocence and their fictitious identities had failed them- pleaded not guilty. The two turncoats, Dasch and Burger, testified that they had intended to betray the plot from the very beginning in Germany. Dasch, whom Mr. Biddle described to this writer ∗Mr. Swanberg interviewed the former Attorney General at his home on Cape Cod shortly before his death in October, 1968.—Ed. as “an interminable talker who made a poor witness,” tended to irritate the judges, whereas the stalwart Burger made a better impression. He, after all, had good reason for his course. After the Gestapo’s mistreatment of his wife and his own imprisonment and torture, he had vowed to betray Hitler (whom he had known personally) at the first opportunity. Even now he was worried that news of his collaboration with the prosecution might leak out and that his wife in Germany would suffer as a result.

As for the unlucky six, their bitterness against Dasch —and to a lesser extent against Burger—was quiet but evident. They were all caught in the same net. The law rewarded the quick squealer. They had not confessed as quickly as the other two and would be condemned for it. They were sure that no real effort would be made to defend them and indeed that their attorneys, Royall and Dowell, were actually spies for the prosecution. The two colonels had worked hard to win their trust, but they did not get it until they were able to arrange for the detested Dasch to be defended by another soldier-attorney, Colonel Carl M. Ristine. From then on the accused men came to understand more strongly with every succeeding day that they were being defended to the very limit of energy and resourcefulness by attorneys of superlative skill who knew all about Ex parte Milligan .

For each day’s session the eight men were shaved by barbers, sir e a razor in their own hands might be used suicidally. They traded their pajamas for the clothing they had bought with Nazi money and were whisked by armored cars guarded with Tommy guns from their cells to the court over routes that changed with each trip. In the courtroom they sat diagonally across from the seven generals who would judge them—generals whose shoulders glittered with a total of twenty-two stars. Each of the unlucky six, though admitting he had arrived secretly by submarine from Germany with TNT and other explosives, gave the only argument open to him—that he had been trapped by fate or fear or military duty.

Young Haupt, pimply but dashing, swore that he had gone along with the plot only through fear of the Gestapo but that never in the world did he intend to carry out any sabotage. The curly-haired, solemn-faced Quirin said that he was actually afraid of explosives and would not have used them in this country or anywhere else. Heinck, the stolid machinist, pointed out that in Germany it was dangerous to refuse such an assignment, but disclaimed any intention to put his training to use here. The balding Thiel said he thought Quentz Farm was a training center for propagandists and was appalled when he learned the truth. These four pictured themselves as deluded about Germany. They said they had seized upon the sabotage plan as the only means of getting back to an America they now appreciated and that they had arrived here somewhat in the nature of refugees from Nazidom.

Biddle left these arguments in shreds. He suggested that they might have received a welcome here instead of a trial had they only made all this known sooner. Instead they had followed every Nazi order, told no one about their doubts, moved stealthily about the country, registered at hotels under fictitious names, carried fraudulent papers, and lived comfortably on Nazi money until the moment of their arrest—after which they still tried to maintain the fiction until they saw it was impossible.