Nazi Saboteurs on Trial: A Military Tribunal and American Law (Landmark Law Cases & American Society) (Hardcover)

by Louis Fisher (Author)
Key Phrases: saboteur case, sabotage school, enemy belligerents, United States, Nazi Saboteurs, Articles of War (more...)

Editorial Reviews

Review
"After 9/11, American civil liberties seem to have entered an Alice-in-Wonderland rabbit hole featuring indefinite detentions and predetermined verdicts - so very similar, as Fisher reminds us, to the wild departures from due process that characterized this famous 1942 case." Robert Justin Goldstein, author of Flag Burning and Free Speech; "Fisher's fascinating and important account of the Supreme Court's decision in Ex parte Quirin reveals how poorly the justices resisted wartime pressures and how badly they failed to protect rights guaranteed by the constitution." Michal R. Belknap, author of The Vietnam War on Trial: The My Lai Massacre and the Court Martial of Lieutenant Calley; "One can only hope that Fisher's compelling account enjoys a wide circulation." Jonathan Lurie, author of Military Justice in America

Product Description
Although huge in scope and impact, the 9/11 attacks were not the first threat by foreign terrorists on American soil. During World War II, eight Germans landed on our shores in 1942 bent on sabotage. Caught before they could carry out their missions, under FDR's presidential proclamation they were hauled before a secret military tribunal and found guilty. Meeting in an emergency session, the Supreme Court upheld the tribunal's authority. Justice was swift: six of the men were put to death--a sentence much more harsh than would have been allowed in a civil trial.

Louis Fisher chronicles the capture, trial, and punishment of the Nazi saboteurs in order to examine the extent to which procedural rights are suspended in time of war. One of America's leading constitutional scholars, Fisher analyzes the political, legal, and administrative context of the Supreme Court decision Ex parte Quirin (1942). He reconstructs a rush to judgment that has striking relevance to current events by considering the reach of the law in trials conducted against wartime enemies.

Fisher contends that, although the Germans did not have a constitutional right to a civil trial, the tribunal represented an ill-conceived concentration of power within the presidency, supplanting essential checks from the judiciary, Congress, and the office of the Judge Advocate General. He also reveals that the trials were conducted in secret not to preserve national security but rather to shield the government's chief investigators and sentencing decisions from public scrutiny and criticism. Thus, the FBI's bogus claim to have nabbed the saboteurs entirely on their own was allowed to stand, while the saboteurs' death sentences were initially kept hidden from public view.

Fisher provides an inside look at the judicial deliberations, drawing on the 3,000-page tribunal transcript, Supreme Court records, and the private papers of the justices and executive officials involved. He analyzes the deep disagreements within the Roosevelt administration, leading to a conclusion in 1945 that the process used against the eight Germans had been defective and, thus, that an entirely different procedure was needed to prosecute two later German saboteurs.

Nazi Saboteurs on Trial also reveals just how poorly the justices resisted wartime pressures and how badly they failed to protect procedural rights. Although Ex parte Quirin is cited as an apt precedent by the Bush administration for the trying of suspected al Qaeda terrorists, Fisher concludes that the 1942 decision was, in the words of Justice Felix Frankfurter, not a happy precedent. His book provides a sober cautionary tale for our current effort to balance individual rights and national security.

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Product Details

• Hardcover: 193 pages
• Publisher: University Press of Kansas (April 2003)
• Language: English
• ISBN-10: 0700612386
• ISBN-13: 978-0700612383
• Product Dimensions: 8.9 x 5.8 x 0.9 inches
• Shipping Weight: 14.2 ounces (View shipping rates and policies)
• Average Customer Review: 4.5 out of 5 stars See all reviews (2 customer reviews)
• Amazon.com Sales Rank: #1,723,930 in Books (See Bestsellers in Books)

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Customer Reviews

Most Helpful Customer Reviews

13 of 13 people found the following review helpful:

4.0 out of 5 stars Were Nazi saboteurs mistreated?, May 22, 2003

By A Customer

REVIEWED BY PHILIP GOLD http://www.washtimes.com/books/

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?

1 of 1 people found the following review helpful:

5.0 out of 5 stars highly relevant, esp. to legal scholars, October 3, 2005

By	Robert D. Harmon "bobnbob3" (Mill Valley, CA) - See all my reviews (REAL NAME)

This review is from: Nazi Saboteurs On Trial: A Military Tribunal And American Law (Landmark Law Cases and American Society) (Paperback)

The previous review is right on; I would add that this book is succinct, and the prose is clear and laypersons should find it understandable. Indeed, laypeople might want to understand the problems that this 60-year-old case poses to our society now. The 9/11 attack and the subsequent Bush Administration order creating special military tribunals -- "military commissions" of the type that tried the 1942 saboteurs -- has inspired several new books on this incident. Mr. Fisher's book distinguishes itself in focusing on the legal importance of this case -- that became the Supreme Court's Ex Parte Quirin ruling. Quirin is still important case law in questions of special tribunals and wartime detention of enemy suspects. Further, and Mr. Fisher brings this out, the Bush Administration's tribunal system seems to be patterned on FDR's.

I recommend this and Louis Fisher's 2005 work, Military Tribunals and Presidential Power to those interested in post-9/11 legal issues.