The Saboteurs’ Case David J. Danelski The Saboteurs’ Case—Ex parte Quirin— arose June 27, 1942, when the FBI announced the capture of eight German saboteurs who had landed on American shores carrying crates of explosives.1 Within a week, President Franklin D. Roosevelt ordered a secret military trial of the saboteurs and issued a proclamation closing the civil courts to them. Three weeks after the trial began, the Supreme Court convened in spe cial session to determine the trial’s constitution ality. Relaxing its rules, the Court decided the case in less than twenty-four hours. Three months later—after six ofthe saboteurs had been executed—the Court delivered its formal opin ion. That was just the surface of the case. Un derlying the official version is a fascinating tale ofintrigue, betrayal, and propaganda; a prosecu tion designed to obtain the death penalty; ques tions ofjudicial disqualification; a rush to judg ment, an agonizing effort to justify a fait accompli; negotiation, compromise, and even an appeal to patriotism in an effort to achieve a unanimous opinion. Intrigue and Betrayal When the United States declared war on Ger many in 1941, Adolph Hitler himself demanded prompt action against the Americans on their own soil. The German High Command re sponded with a plan to send saboteurs to the United States by U-boat. The plan had both mili tary and propaganda goals. The saboteurs were instructed not only to blow up American war plants, bridges, and transportation facilities, but also to set explosive devices in department stores and railroad stations to create public panic. The High Command assigned the task of recruiting and training the saboteurs to Lieutenant Walter Kappe, a thirty-seven-year-old loyal Nazi who had lived in the United States for twelve years, working mostly as a journalist for German-lan guage newspapers. He was very active in the German-American Bund; in the mid-1930s he had challenged Fritz Kuhn—the American Fuehrer—for leadership ofthe Bund. A man with an ironic sense ofhumor, Kappe gave the Ameri can mission its code name, “Operation Pastorius,” after Franz Daniel Pastorius, leader of the first German immigrant community in Pennsylvania, and Kappe chose the Fourth of July, 1942, as the day for his agents’ first rendezvous in the United States.2 Kappe sought recruits like himself—Ger mans who had lived in the United States for sev eral years and who had proven their loyalty to the Reich by returning to the Fatherland after Hitler rose to power. Kappe recruited twelve agents and chose eight of them for Operation Pastorius. He then divided the eight into two 62 SABOTEURS’ CASE groups of four, each with a leader. He chose George John Dasch and Edward John Kerling as leaders. Dasch, a former waiter who had been edu cated in a Catholic seminary in Dusseldorf, came to the United States in 1922 at the age of nine teen and returned to Germany in 1940. Although he had not been a member of the Nazi Party or the Bund, Dasch managed to get a job in the German foreign office as a radio monitor and translator. Voluble and egocentric, he impressed Kappe with his glib intelligence and American manners and speech. Kerling had joined the Nazi Party in 1928 when he was an engineering student at Freiburg University. Emigrating to the United States in 1929 at the age of twenty-one, he made arrange ments to continue his Party membership. His membership number was under 100,000, which placed him in the Old Guard and gave him spe cial status in the party. Until his return to Ger many in 1940, Kerling had been employed as a butler and chauffeur for wealthy Americans, but, unlike Dasch, he had not become Americanized. Kappe was impressed by Kerling’s intelligence, strength of character, and loyalty to the Nazi cause. When Kappe recruited him, Kerling was working for the Propaganda Ministry.3 Two of Kappe’s recruits—Ernest Peter Burger and Herbert Hans Haupt—were natural ized American citizens. Burger, who was thirtyfive , had participated in Hitler’s Munich Beer Of the eight German saboteurs, only two, Ernest Peter Burger and Edward John...