Although the history of the U.S. homefront during World War II has attracted plenty of scholarly attention in recent years, no episode of the war years has been as thoroughly mined as the capture and trial of the eight Nazi saboteurs dropped off shore by U-boats at Amagansett, Long Island and south of Jacksonville, Florida. The men buried explosives in the sand and then scattered around the country. Within two weeks, all eight were in the custody of the FBI, turned in by none other than their appointed leader, the nervous George Dasch, whose primary qualification for the job was his familiarity with American slang. The saboteurs were convicted by a hastily convened military commission and six were executed. Four months later, the Supreme Court issued an opinion upholding the legitimacy of the commission that had condemned the saboteurs. Because this precedent, Ex parte Quirin, is the primary legal justification for the current U.S. effort to try suspected terrorists before military commissions, the plight of the saboteurs has become a touchstone of contemporary American politics and law. The question of whether the Supreme Court, the Army, the FBI, and the president properly handled the two teams of captured Nazi agents in the summer of 1942 is closely related to the question of whether the path set by President George W. Bush is the appropriate U.S. response to the post-9/11 battle against terrorism.
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Each of these three books provides enough background information to initiate the reader into the strange incidents that doomed the saboteurs to failure and led to the Supreme Court’s opinion in Ex parte Quirin. All three authors agree that the boldness of the Nazis’ plan was matched by the ineptitude of the men chosen to carry it out, that the U.S. coastal defense left much to be desired (only lucky breaks allowed J. Edgar Hoover to take credit for catching the saboteurs), and that the speed, secrecy, and unfairness of the saboteurs’ collective trial created ethical dilemmas for the lawyers who took part in the case. Dobbs, Fisher, and O’Donnell capitalize on the spy-thriller narrative and notable personalities who took part in this wartime drama. They reveal FDR’s grim determination to punish the saboteurs, Supreme Court justices in the throes of doubt, army colonel Kenneth Royall’s dogged efforts to defend his clients, and Nazi ringleader Dasch’s eccentric behavior. Each book also engages the larger issues behind the saboteurs’ capture and trial, probing in particular the tension between national defense and civil rights and highlighting the legal consequences of wartime exigency.
Although the shared topic creates many similarities among these books, the very different interests of the authors make for three quite different works. Fisher’s book—first published in 2003 and the only one of the three published by a university press—is careful, logical, and forceful. Fisher is a senior scholar of U.S. government and law who spent thirty-five years at the Congressional Research Service before departing early in 2006 after a dispute over scholarly independence. Fisher himself describes this book as a “stepping-stone” (xii) to his larger analysis of military tribunals in American history, and that’s just how it reads: Its focus is not on the saboteurs but rather on the intricacies of the U.S. legal system and what the Quirin case tells us about them. Fisher is at his best parsing legal arguments, distinguishing constitutional, statutory, and common law, and, ultimately, explaining why the trials of the saboteurs overstepped the authority granted to the president by the Constitution. He sees this case as a prime example of “unwise and ill-conceived concentration of power in the executive branch” (161). He pulls no punches in identifying poor government decision making and deciding that much of what passed for “justice” was patently unconstitutional. The 2005 re-issue (slightly abridged and updated) of Fisher’s 2003 book of the same title has no footnotes, as is the norm for volumes in the University Press of Kansas’s Landmark Law Cases and American Society series (edited by Peter Charles Hoffer and N. E. H. Hull). Fisher’s excellent bibliographic essay, however, compensates well for the absence of notes.
Michael Dobbs’s Saboteurs is quite different in style and content from Fisher’s book. As its title suggests, it tells the tale of the saboteurs themselves rather than using the story to engage larger questions of governmental structure. Of the three books, Dobbs’s journalistic account is the most elegantly written and accessible for non-lawyers. This book is less concerned with making normative judgments than with understanding the motives of those who played key roles in the political and legal dramas of the saboteurs’ failed mission and subsequent prosecution. With the help of interviews and knowledge gleaned from visits to key sites in the story, Dobbs allows the reader a glimpse into the many worlds of World War II. We come to appreciate not only the difficult process of drafting a controversial Supreme Court opinion but also the dangers of life onboard a German U-boat and the dazzling appeal of New York City and Chicago to just-landed saboteurs with belts full of cash.
Longer and grander in scope than the other two books, Pierce O’Donnell’s ambitious In Time of War is deeply researched and packed with detail that helps bring to life historical actors as well as the wartime clash of civil liberties and national security. As one might expect from a noted trial attorney, O’Donnell is fascinated by the many lawyers who took part in the prosecution of the saboteurs and by the theatrics—and rampant injustices—of the trial and appeal to the Supreme Court. O’Donnell’s blow-by-blow account of the trial itself depicts North Carolina lawyer Kenneth Royall, defense attorney for the saboteurs, as the hero of legal proceedings that were otherwise tarnished by poor judgment and weak arguments. O’Donnell’s account is also unabashedly presentist. The final part, titled “A Cautionary Tale,” draws lessons for current U.S. policies regarding military commissions from the saboteurs’ case, discusses the import of the three 2004 opinions of the Supreme Court in cases involving suspected terrorists (Rasul, Padilla, and Hamdi), and issues a stirring call for “robust debate” over the proper and lawful means to fight terrorism and for congressional action in defense of civil liberties (361–62). Although his book lacks either the authority of Fisher’s or the color of Dobbs’s, O’Donnell reveals great passion for the rule of law and attention to scholarly detail.
This collection of well-crafted books should satisfy readers seeking insight into the high politics of World War II, the practical and legal complexities of spying and sabotage, and the compromises that war forces upon systems of justice.
By Michael Dobbs
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