The Nazi Invasion of Long Island

As grim and horrible as World War II was, it is also a great story book, with endless tales, as if everyone involved was part of a magnificent but frightening fable. Of all of its many tales, the Nazi invasion of Long Island ranks as one of my favorites. Although two books have been published on the subject in recent years, it is still not a well remembered or discussed event, not even on Long Island, which happens to be, of course, my home. Some of it, particularly the legal end, was kept secret for many years.

The invasion, carried out by eight Germans, occurred in late Spring, 1942. It’s important to put this in time perspective. The war technically started in 1939 when Germany invaded Poland, but the United States did not become involved in a open and direct manner until Pearl Harbor was bombed by the Japanese on December 7, 1941.

America immediately declared war against Japan and a few days later against Germany and Italy after they declared war on us. (what a quaint idea – Congress declaring war - despite all our future wars, it was the last time it would ever happen)

The Allies were far from winning at the time that the saboteurs arrived here, in late Spring, 1942, although they may have, unknown to most, just begun to turn the tide. Still, Germany controlled the European continent and was doing tremendous damage to Allied shipping in the Atlantic. Japan ruled the Pacific (although it had just lost the Battle of Midway, which would be seen as a turning point in the war). There was still great fear of invasion in this country. In fact, earlier that year the almost entirely loyal group of Japanese-Americans on the West Coast were ordered to detention camps.

Thus, when you see the public reaction to this event, and how the President and Supreme Court acted, consider the fear and righteous anger in the country at the time, still reeling from Pearl Harbor, and just starting to get some licks in. It is comparable to the outrage and fear we felt right after 9/11.

This sabotage plan was commenced at Hitler’s urging and given the code name “Operation Pastorius,” which was meant ironically, as Franz Pastorius led the first group of German immigrants to America late in the 17th century. If things went well, the saboteurs would be blowing up railroads, manufacturing and power plants as well as Jewish department stores, among other targets. It was run by a passionate Nazi, Lieutenant Walter Kappe.

The eight saboteurs were chosen by Germany’s intelligence service because they had all lived in America at earlier times and spoke English. In fact, one was still an American citizen and another had been.

The training at a secret location known as Quenz Lake was serious, including practice with explosives, sabotage, unarmed combat, marksmanship and even parachuting. Yet, there may never have been a more incompetent and unmotivated group of saboteurs. While still in Paris on their way to the coast, one of the team, Heinrich Heinck got drunk in a bar and began saying “I am a secret agent”. His companions pretended they didn’t know him. Another one, Herbert Haupt, caused a ruckus in a brothel by not paying the prostitute who had serviced him. The leader of one of the two teams, John Dasch, left his fake papers on a train and was detained by a suspicious soldier, and had to be rescued by Kappe and a Gestapo agent.

Worse yet, the team discovered, upon inspecting the U.S. currency given to them by Kappe, that it contained a gold certificate, no longer in circulation in the United States, and bound to raise suspicions, and even more insanely, dollars stamped with Japanese symbols, that had been circulated in the Asia.

The eight were divided equally into two teams of four, one group to arrive by submarine on Long Island, another in Florida a few days later. (George) John Dasch had been the first man recruited for the operation. He had lived 19 years in America as a waiter. Although a former U.S. army air corpsman stationed in Honolulu, when war broke out he returned to Germany and got a job monitoring American radio for Kappe. He later would claim that he hated the Nazis and had never taken the plot seriously. That very well may be true.

Also on Dasch’s team was Ernest Burger, who had been a naturalized U.S. citizen. He had actually participated in Hitler’s Beer Hall putsch in 1923 and joined the German Army after Hitler came to power. At that point, his citizenship was deemed rescinded. Unfortunately for him, he backed the wrong faction, and barely escaped the same fate as his leader, who was murdered (“Night of the Long Knives”). Later he was sent to a concentration camp for allegedly falsifying government documents (actually, he was just critical of the Gestapo in a report). While he was there, the Gestapo interrogated his wife, causing her to miscarry. Burger never forgave them.

Heinrich Heinck and his co-worker Ernest Quirin, whose name would later grace the Supreme Court case that came out of this poor excuse for a crew, rounded out the team. The other team landed in Florida four days later, led by Edward Kerling, included Herbert Haupt, who had been naturalized a U.S. citizen in his youth, and had fled from a pregnant girlfriend back to Germany. Kerling had himself left behind a wife and mistress who he would have to juggle when he got here.

When the first crew arrived off Amagansett, NY (right near the better known Montauk Point at the Eastern end of the island) on June 13th, 1942, the Keystone Cops like group sprang into action. The team leader, Dasch, who had misplaced his papers on the train, jumped off the small rubber boat in which he was being rowed to the beach, believing he was close to the shore, and immediately sank. Fortunately for America, as you will see, he was rescued. The four men made it to land, but the sub became stuck on a sandbar and could be heard throughout the night trying to free itself.

When the saboteurs landed they were wearing military uniforms. This was important to all commandos, because to be caught out of uniform invading another country would make you a spy, not a soldier, and you would likely be hung instead of becoming a POW.

However, the uniforms were just in case they were caught landing, and the team immediately began to bury their uniforms in the sand along with their explosives. While they were doing this, along came an unarmed coast guardsman from the local station on patrol, by the name of John Cullen.

It was, of course, quite dark out. Because of the war, the coast was blacked out at night. Cullen had a flashlight and was quickly approached by Dasch, who hoped to fool him. It should not surprise anyone by now, but Burger, seeing Dasch with the guardsman called to him in German, hitting Cullen over the head with what was going on. Dasch told Cullen he did not want to kill him and gave him three hundred dollars. He gave a fake name to Cullen (who also gave him a fake one) but also told him to look in his eyes and remember his face. Dasch was already using Cullen's discovery for his own purposes. It would be ludicrous to believe that he really thought Cullen could be that easily bought off, and would not turn them in.

Which is exactly what he did. Cullen made his way back to the station and reported the incident (and yes, he turned in the money too). Guardsmen went back to the beach and watched the sub trying to free itself from the sand bar. By morning they had dug up the buried stash and reported it to the FBI, which began an unsuccessful manhunt.

In the meantime, the four saboteurs made it to the train station and in the morning bought tickets for Jamaica. If you are from Long Island you know that virtually all trains from Long Island go through that town, which at the time, had a high German population. The team bought some clothes there before moving on.

While in the City, they split into two smaller groups, Dasch with Burger and Heinck with Quirin. During a long night Dasch, challenged by Burger over his seeming lack of interest, confided to him that he never intended to go through with the plan, and wanted to turn everyone in. Burger decided to go along with him. With Burger left behind to distract the increasingly suspicious and hostile Heinck and Quirin, Dasch took a train to D.C. with a bagful of money to turn them all in. Before he left he made a telephone call to the FBI to prepare the way. He used the name Franz Pastorius. The FBI agent made a note of it, but did not connect it to the manhunt.

When Dasch got to Washington he again called the FBI, who were unprepared for him, but agreed to send a car to get him. Two agents questioned him but did not seem to take him seriously until he dumped the contents of over $80,000 onto the desk and floor. Frankly, I have always had a little difficulty understanding how someone claiming to be a saboteur could walk into an FBI office with an unexamined suitcase to begin with and open it up with no one stopping him.

The FBI was in the control of its founding member, J. Edgar Hoover, who may have the record for retaining the longest hold on a position of power in American history, as he ran the FBI and its predecessor agency from 1924 until his death in 1972, spanning 48 years and 8 presidents.

One thing Hoover knew how to do was puff up the FBI’s reputation. All eight saboteurs were quickly rounded up. Hoover immediately had a press conference in which he completely ignored the work of the on the spot Coast Guard. In fact, during his three media communications, there was not a single mention of the Coast Guard at all.

Hoover’s actions infuriated others in the government, including the Secretary of War, Henry Stimson, who thought that the capture should be kept quiet until the second and third groups of saboteurs scheduled to come over arrived. Now it was too late.

The public was furious too, but at the saboteurs. Public opinion was overwhelmingly in favor of their quick death as was the media. Hundreds of German citizens were rounded up for questioning. One woman died of a heart attack during her interrogation. Three of the saboteurs had been waiters in America. Consequently, the Justice Department ordered the dismissal of all German and Italian waiters from D.C. restaurants and hotels.

President Roosevelt made up his mind that the death sentence for these saboteurs was “obligatory”. A military commission was set up by presidential order. It was believed by the president that the citizenry was still too complacent and a military trial would shake them out of it.

The trial rules set out in the presidential order were prosecution friendly. For example, the standard of guilt was less than the traditional reasonable doubt, a guilty verdict by only two-thirds of the presidents selected commission was sufficent to convict, as opposed to the usual unanimous verdict, and the rules of evidence were relaxed.

In a second order, the Army officers who were to represent the defendants were forbidden to go to the civil courts. This was interesting, because a famous Supreme Court case that arose during the Civil War (Ex Parte Milligan) had held that if the civil courts were open, then that’s where civilians should be tried. Even Hoover agreed this was the law. However, it was also true that Milligan had not been a member of an enemy army.

Moreover, this second order essentially prohibited the right of habeus corpus, which is where the right to bring a case to court by those in detention is found. It is considered one of the most important civil rights, and the constitution does not permit it to be suspended except by Congress (thus, not the president) and only then in time of insurrection or invasion.

To Dasch’s shock, the government would prosecute him and Burger along with the others. They talked Dasch out of explaining his role in the arrest during the trial, claiming that it would endanger his family at home and that it was important not to let the Nazis know how easy it was to penetrate America’s defenses. More likely, they did not want to let anyone know that the Coast Guard had discovered the intruders and that the FBI had ignored it. Dasch was told that they would be pardoned a few months later.

The 18 day trial began to great fanfare on July 8th, only four days after the Independence Day holiday when the sabotage was scheduled to begin. Although it was tried in secret, daily bulletins were released, and photographers were allowed to come in and take pictures of the prisoners.

The charges were not that impressive, and included sneaking past military and naval lines (which lines – there was a sparsely defended coast roamed by unarmed Coast Guardsman?) without uniforms for sabotage purposes, giving intelligence to the enemy (they hadn’t), lurking or spying around fortifications (and old favorite, but again, where had that happened?) and conspiring with one another and the Third Reich (well, that was true, but may not technically have been a war crime – conspiracy is clearly not deemed one now).

One of the defense attorneys was Colonel Kenneth C. Royall, who was a tough and dedicated military lawyer, and a student of Supreme Court Justice Felix Frankfurter at Harvard Law. He and a co-counsel wrote to Roosevelt (who had appointed them and everyone else involved including the judges) to ask permission to go to the Supreme Court, despite the earlier order. They were told that they would not be given instructions and had to do as they saw fit. They asked for a writ of habeus corpus from the lowest civil federal court and were denied. They arranged to take it to the Supreme Court of the United States for a show down.

The case, In re Quirin, was not the Supreme Court’s finest moment, whether or not one agrees with their decision. The obvious conflicts of interest in this case were astounding. One of the justices, Felix Frankfurter, a Jewish immigrant from Austria who hated the Nazis even more more than most Americans, was completely entangled with the administration. Prior to the case coming up, he had sat down with his former boss, the Secretary of War, proposed the military commission and made suggestions as to who should be on it.

Another two justices (Roberts and Black) met with all counsel prior to the case at Robert’s farm, to see how they could smooth the way for it to come to the Supreme Court. This may have been necessary in this incredibly tense and fast moving situation, but it was highly unusual.

The Chief Justice Stone’s son was on the defense team. Another justice, Byrne, worked so closely with Roosevelt and the attorney general, Biddle, that Biddle, who tried the case himself, thought Byrne had left the court to work for the administration full time. In fact, Byrne would soon do exactly that.

For all that, only one justice, Murphy, recused himself, because he was serving for the armed forces at the time. He listened to the oral argument from behind the curtains.

Royall had a difficult time at the arguments, particularly from his old professor, Frankfurter. When asked if Hitler would be given a trial and constitutional rights if he and his generals landed on American soil out of uniform, he felt compelled to argue yes. Now that's a tough argument to make. He also argued, to general laughter, that the saboteurs were unarmed . . . er . . . except for the explosives. He did his best to rely on the Milligan case in which the court ruled that ordinarily, when civil courts are open, that's where prosecutions must occur.

I will spare you the rest of various legal arguments. A few things are important. For one, even the Supreme Court was never told of Dasch’s and Burger’s role. For another thing, Roosevelt let it be known through one of the justices that if they interfered with the trial, he would simply have all the prisoners shot. Imagine George Bush doing that today (and in case some of you think he did do something like that – so far the detainees are winning these cases).

Another incident of the case was also quite unusual. Justice Frankfurter actual sent an interesting memo to his brother justices, now known as Frankfurter’s Soliloquy, in which he imagined a hearing where the defendants made their claim and he shot back at them with insults and venom. He then pressed upon the other justices the fact that there were many good lawyers overseas who would be shocked that the court was even considering bucking the president on his commission during war, and argued that this wasn’t the time for legal niceties. Later however, Frankfurter may have regretted his role, describing the case as “not a happy precedent”. The Chief Justice later called it a “mortification of the flesh”.

Essentially, the court backed the president completely, but the court did not explain its reasoning until it issued a decision until nearly three months later. Some on the court and their staff were deeply troubled by this. One law clerk later wrote “If the judges are to run a court of law and not a butcher shop . . . the reasons for killing a man should be expressed before he is dead.”

Six of the defendants were in fact shot dead the very day after the Supreme Court gave its okay. It happened so quickly that their counsel learned about it from the press. Only Dasch and Burger were spared, their sentences being commuted by the president, who had final say. Dasch was given thirty years and Burger life, both at hard labor. They were not, in fact, pardoned until 6 years later, by Harry S Truman, and deported to Germany. After the war Dasch’s role was disclosed and he was reviled in Germany as a traitor. He longed to return to the United States but was blocked by Hoover himself. Dasch was not an easy man to like. He was extremely garrolous and annoying.

It is difficult nowadays to say whether the sabotage plans would ever have gone forward even if the would be saboteurs were not captured. It seems that even those that were not turning themselves in were more interested in womanizing and getting on with life than doing anything dangerous, but some of them were serious. Of course, who knows?

Royall had done a magnificent job for the most unpopular of defendants. Before the six condemned men were electrocuted they wrote Royall a touching letter commending him:

"Being charged with serious crimes in wartime, we have been given a fair trial . . . Before all we want to state that defense counsel . . . has represented our case as American officers unbiased, better than we could expect and probably risking the indignation of public opinion. We thank our defense counsel for giving its legal ability . . . in our behalf."

Royall later became a brigadier general, the last U.S. Secretary of War (it then became Secretary of Defense) and the first Secretary of the Army, and many many important contributions to our country, which I will not go into here.

We have in the last two years several cases come before the Supreme Court concerning the detention of prisoners in the War on Terror. The Quirin case is always put forward by the administration as the template. It is difficult to say if there is much left to its holdings now after the recent spate of cases. However, the “blank check” given to the president by Quirin and other cases has been canceled.

The recent court cases, unlike Quirin, which the public supported, are quite controversial. Some believe they are a last bulwark against tyranny, others a foolish interference with the job of the executive branch in winning a war.

In that respect, an article published by the Washington Post after Quirin strikes to the heart of both arguments. It said:

“To handle [the case] in the civil courts would be to help Hitler immensely, and that would be intolerable. We cannot afford to give our enemy, in our present pass, the slightest assistance. At the same time we are engaged in delivering the world from a tyranny in which the rights of the individual have no place. Those rights are enshrined in our reign of law. If we simply disregard the law, even in our treatment of enemies, we shall be in danger of coming out of the war as Hitlerian as Hitler.”

Perhaps both sides should take note in considering these difficult questions.