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Cover Sheet
STENOGRAPHIC TRANSCRIPT OF PROCEEDINGS
Before the
MILITARY COMMISSION TO TRY PERSONS
CHARGED WITH
OFFENSES AGAINST THE LAW OF WAR AND THE
ARTICLES OF WAR
________________
Volume I
Pages 1 to 142
1
CONTENTS
OPENING
STATEMENT ON BEHALF OF THE PROSECUTION
By The Attorney General 67
|
Name
of Witness |
Direct |
Cross |
Redirect |
Recross |
|
Matthias
R. Griffin |
93 |
|
|
|
|
John
C. Cullen |
100 |
116 |
120 |
|
|
Warren
Barnes |
121 |
|
|
|
Prosecution
|
For
Identification
|
In
Evidence
|
|
P-1 Letter |
|
73 |
|
P-2 Letter |
|
75 |
|
P-3 Custody
Receipt, Ernest Peter Burger |
|
76 |
|
P-4
“ “ George John Dasch |
|
76 |
|
P-5
“ “ Herbert Haupt |
|
76 |
|
P-6
“ “ Heinrich Harm Heinck |
|
77 |
|
P-7
“ “ Edward John Kerling |
|
77 |
|
P-8
“ “ Herman Neubauer |
|
77 |
|
P-9
“ “ Richard Quirin |
|
77 |
|
P-10 “
“ Werner Thiel |
|
78 |
|
P-11 Public Proclamation No. 1 |
|
80,
81 |
|
P-12,
P-12 ½ Chart showing areas comprising
Eastern Sea frontier June 12 to 18, and paper describing area by metes and
bounds |
|
82 |
|
P-13-A
to P-13-I Map showing coast of |
89 |
|
|
P-14
to P-21 Eight Charge sheets |
|
92,
99 |
|
P-22 Container containing cap |
100 |
|
|
P-23 Wooden box |
128 |
|
|
P-24 Bag |
128 |
|
|
P-25
Coat |
129 |
|
|
P-26 Bathing
trunks |
129 |
|
|
P-27 Canvas
shoe |
129 |
|
|
P-28,
P-29 Two shovels |
130 |
|
|
P-30 Package
containing cigarettes |
130 |
|
|
P-31
Tin container |
131 |
|
|
P-32 Coat |
132 |
|
|
P-33 Pair
of shoes |
134 |
|
|
P-34
Pair of pants |
135 |
|
--ooOoo--
2
STENOGRAPHIC
TRANSCRIPT OF PROCEEDINGS
Before the
MILITARY
COMMISSION TO TRY PERSONS CHARGED WITH
OFFENSES AGAINST
THE LAW OF WAR AND THE
ARTICLES OF WAR
________________
The
Military Commission appointed by the President by order dated July 2, 1942,
met, in room 5235 Department of Justice, at 10 o'clock a.m., to try for offenses
against the Law of War and Articles of War, the following persons: Ernest Peter Burger, George John Dasch,
Herbert Haupt, Heinrich Harm Heinck, Edward John Kerling, Herman Neubauer,
Richard Quirin and Werner Thiel.
PRESENT: Members of the Military Commission, as
follows:
Major General Frank M. McCoy,
President,
Major General Walter S. Grant,
Major
General Blanton Winship,
Major General Lorenzo D. Gasser,
Brigadier General Guy V. Henry,
Brigadier General John T. Lewis,
Brigadier General John T. Kennedy.
As
Trial Judge Advocates:
Honorable Francis Biddle,
Attorney General of the
Major General Myron Cramer,
The Judge Advocate General,
Colonel P. Granville Munson,
Colonel John M. Weir,
Colonel Erwin M. Treusch.
Officers of the Judge
Advocate General's Department.
Oscar Cox,
Assistant
Solicitor General of the
James H. Howe, Jr.,
Assistant
to the Attorney General.
As
Provost Marshal:
Brigadier General Albert L. Cox.
3
As
Counsel for the Accused except George John Dasch:
Colonel Cassius M. Dowell,
Colonel Kenneth Royall,
Major Lauson H. Stone,
Captain William G. Hummell.
As
Counsel for the Accused George John Dasch:
Colonel Carl L. Ristine.
- - - - -
PROCEEDINGS
The
President. The Commission will come to
order.
The
Commission is now open for the trial of such persons as may be brought before
it.
Brigadier
General Cox. Bring in the prisoners.
(The
prisoners were brought into the room.)
Colonel
Munson. May it please the
Commission: The prosecution is ready to
proceed with the trial in the case of the
The
reporter will be sworn.
(The
oath was administered to the reporter, Mr. Francis J. Attig, as follows:)
Colonel
Munson. Do you swear that you will
faithfully perform the duties of a reporter to this Commission, so help you
God?
Mr.
Attig. I do.
4
Colonel Munson. I am directed by the Trial Judge Advocates to
name the following men to this honorable Commission. The Trial Judge Advocates nominate and
request your honorable body to accept as assistant trial judge advocates the
following named officers of the Department of Justice; Oscar Cox, Assistant
Solicitor General of the United States, and James H. Rowe, Jr., Assistant to
the Attorney General.
Will
those gentlemen rise, please, so that they may be identified?
(Mr.
Cox and Mr. Rowe rose.)
Colonel
Munson. And also the following named
officers of the United States Army:
Colonel F. Granville Munson, now addressing the Commission; Colonel John
M. Weir, and Colonel Erwin M. Treusch; all being officers of the Judge Advocate
General's Department of the Army.
Will
they be accepted as assistant trial judge advocates?
The
President. They will be accepted.
Colonel
Royall. May it please the
Commission: Before the defense counsel
take any part or are recognized in this matter, we desire to make a statement
to the Commission.
The
President. Is that in order, as far as
the prosecution is concerned?
Colonel
Munson. Yes.
The
President. It will be received.
Colonel
Royall. In deference to the Commission
and in order that we may not waive for our clients any rights which may belong
to them, we desire to state that, in our opinion, the order of the President of
the United States creating this court is invalid and unconstitutional. I do not think it
5
necessary or appropriate to argue that
question unless I am so requested.
It
is perhaps sufficient to state that our view is based, first, on the fact that
the civil courts are open in the territory in which we are now located and
that, in our opinion, there are civil statutes governing the matters to be
investigated.
In
the second place, we question the jurisdiction of any court except a civil
court over the persons of these defendants.
In
the third place, we think that the order itself violates in several specific
particulars congressional enactments as reflected in the Articles of War.
The
President. Are there any remarks on the
part of the Prosecution?
The
Attorney General. I do not want to argue
the case, but if at the appropriate time you wish to hear argument on it, I
should like to be heard. May I simply
make a very brief statement in answer to Colonel Royall's remarks?
In
the first place, I cannot conceive that a military commission composed of high
officers of the Army, under a commission signed by the Commander-in-Chief,
would listen to argument on the question of its power under that authority to
try these defendants.
In
the second place, let me say that the question of the law involved is a
question, of course, to be determined by the civil courts should it be
presented to the civil courts.
Thirdly,
this is not a trial of offenses of law of the civil courts but is a trial of
the offense of the law of war, which is not cognizable to the civil
courts. It is the trial,
6
as alleged in the charges, of certain
enemies who crossed our borders, crossed our boundaries, which had then been
described by the military and naval authorities, and who crossed in disguise in
enemy vessels and landed here.
They
are exactly and precisely in the same position as armed forces invading this
country. I cannot think it conceivable
that any commission would listen to an argument that armed forces entering this
country should not be met by the resistance of the Army itself under the
Commander-in-Chief or that they have any civil rights that you can listen to in
this proceeding.
Colonel
Royall. May I say in reply, sir, that
the entire rank of the corps or the President of the United States does not, in
our opinion, affect the matter in any way, and it is needless to say to this
Court that we are basing our position in no sense upon the personnel of the
Court or any lack of confidence that we have in it.
Colonel
Ristine. If the Commission please, on
behalf of the one prisoner—
The
President. I take it you are Colonel
Ristine?
Colonel
Ristine. Yes, sir.
The
President. Representing the one prisoner
by name?
Colonel
Ristine. Representing the one. May I request that the objections urged by
defense counsel be equally applicable to that prisoner, George John Dasch?
The
President. Colonel Ristine, Mr.
Reporter, has been directed by competent authority to represent that particular
prisoner, and the Commission has been so informed by such authority.
7
Colonel
Dowell. Another comment by defense
counsel, if the Commission please: The
purpose of these remarks at this time is merely to ward off any assumption that
the defense accepts by participating in this proceeding the legality of the
tribunal or of its method of constitution.
The
President. Does the prosecution care to
remark on these statements of the defense counsel?
The
Judge Advocate General. No, sir.
The
President. It is the opinion of the
Court that before any decision in the order of instance be passed on by the
Commission, the Commission shall be sworn and organized. I might state in this connection that the
Commission will hold its proceedings in secret; that those present will be
limited to the proper officials of the prosecution and of the defense; and that
they will all be sworn, as well as such officials as may be present on the
request of the prosecution and the defense, subject to the decision of the
Court as to the propriety of their entrance; and that there will be no
spectators of any character or kind admitted to the sessions of this Court or
Commission.
Since
the procedure as to order of instance will be that followed in military courts
in general, we shall now proceed to the swearing of the Court and those present
before taking action on your request.
Colonel
Munson. May it please the
Commission: The defense counsel requests
me to ask your honorable body to accept as assistant defense counsel the
following named officers of the Army of the
(Major Stone rose.)
8
Colonel
Munson. Captain William G. Hummell.
(Captain
Hummell rose.)
Colonel
Munson. With respect to those present,
do I understand the order of the Commission to cover the officers of the
Federal Bureau of Investigation, who are necessary in the conduct of the case,
and such assistants as the Attorney General may desire to aid him in the prosecution
of the case, without naming those officers specifically?
The
President. That is correct.
Colonel
Munson. That is correct, sir.
The
President. I shall ask you to name them
to the officer at the door. I shall ask
you to present to Lieutenant Page, representing the Provost Marshal, at the
door, a list of those authorized, so that they may be passed in and out
properly and expeditiously.
Colonel
Munson. Two copies of the record will be
furnished the defense under the terms of the order.
I
shall now read the order appointing this military commission.
“Commander-in-Chief
of the Army and Navy
“Washington, D.
C.
“By
virtue of the authority vested in me as President and as Commander-in-Chief of
the Army and Navy, under the Constitution and Statutes of the
The latter, I may interpolate, standing
for United States Code, Title 10, 1509—
9
“I, Franklin Delano Roosevelt, do
hereby appoint as a Military Commission the following persons:
“Major General Frank R. McCoy,
President
Major General Walter S. Grant
Major General Blanton Winship
Major General Lorenzo D. Gasser,
Brigadier General Guy V. Henry
Brigadier General John T. Lewis
Brigadier General John T. Kennedy
“The
prosecution shall be conducted by the Attorney and the Judge Advocate
General. The defense counsel shall be
Colonel Cassius M. Dowell and Colonel Kenneth Royall.
“The
Military Commission shall meet in
1942,
or as soon thereafter as is practicable, to try for offenses against the Law of
War
and the Articles of War, the following persons:
“Ernest Peter
Burger
George
John Dasch
Herbert
Hans Haupt
Henry Harm
Heinck
Edward John Kerling
Hermann Otto Neubauer
Richard Quirin
Werner Thiel
“The
Commission shall have power to and shall, as occasion requires, make such rules
for the conduct of the proceedings, consistent with the powers of Military
Commissions under the Articles of War, as it shall deem necessary for a full
and fair trial of the
10
matters before it. Such evidence shall be admitted as would, in
the opinion of the President of the Commission, have probative value to a
reasonable man. The concurrence of at
least two-thirds of the Members of the Commission present shall be necessary
for the conviction or sentence. The
record of the trial including any judgment or sentence shall be transmitted
directly to me for my motion thereon.
“FRANKLIN
D. ROOSEVELT
“The
White House,
“July
2, 1942.[”]
All
the members of the Commission named therein are present, to wit: Major General
McCoy, Major General Grant, Major General Winship, Major General Gasser,
Brigadier General Henry, Brigadier General Lewis, and Brigadier General
Kennedy.
The
accuser in this case is Colonel F. Granville Munson, United States Army. The charges were forwarded to the Trial Judge
Advocates of this Commission by letter of The Adjutant General, dated
No
member of this Commission is to be called as a witness for the prosecution, and
no cause for or ground of challenge of any member of this Commission is known
to the prosecution.
Is
any member of this Commission aware of any facts which he believes to be a
ground for challenge by either side? If
so, please state those facts.
11
The
President. There seem to be
Colonel
Munson. The prosecution has no
challenges.
The
President. Lieutenant Page, please
permit nobody to leave the court or to enter until further instructions. I will make an exception for any who have
heretofore been sworn.
For
the moment I will ask you to carry out my previous instructions--that nobody
will be allowed to leave or enter until further instructions.
(The oath was administered to the
reporter, Mr. N. J. Cinciotta, as follows:)
Colonel
Munson. Do you swear that you will
faithfully perform the duties of a reporter to this Commission, so help you
God?
Mr.
Cinciotta. I do.
Colonel
Munson. Do the accused or their counsel
desire to challenge any member of this Commission for cause?
Colonel
Royall. May it please the Commission, on
account of the unusual nature of the proceeding, and because of the short time
that we have had to investigate this matter, if the Commission will permit us,
with all deference, of course, to the individual members of the Commission, we
would like to ask the Commission as a body a few questions to determine whether
or not we will challenge anyone, if that is permissible.
The
President. I would like to ask the Judge
Advocate General of the Army whether he thinks the proceedings would more
properly, on this plea, follow the organization of the Commission with regard
to swearing the Commission and counsel and those present.
The
Judge Advocate General. I do not
believe, sir, that
12
I understand just what you mean. Do you mean to swear the Commission first?
The
President. That was the question I was
asking, whether we should be sworn and organized prior to acting on these
objections and pleas.
The
Judge Advocate General. No, you should
not, sir.
The
President. In other words, we should act
without further organization of the Commission?
The
Judge Advocate General. Yes, sir.
The
President. Has the defense any comment
on that?
Colonel
Royall. Our view of it would be this,
sir; that on the question of challenge that should be disposed of before the
Commission is organized. I think that is
the normal and proper procedure. As to
any other matters, I should think the Commission would have to be organized and
sworn.
The
President. It seems to me, then, that
the Commission should act on your challenge.
I take it there is a challenge to the jurisdiction.
Colonel
Royall. There is a challenge to the
jurisdiction. If the Commission desires
my opinion, I think that any action taken by the Commission as a Commission
would have to be taken after you are sworn.
But the question of challenge, if I understand the Court Martial Manual,
is normally disposed of before the Commission is sworn.
I
think that is correct, is it not?
Colonel
Munson. That is correct. That is provided for in the 57th paragraph
of the present Manual for Courts Martial.
Does the Commission desire me to read it?
The
President. The Commission is familiar
with that. I
13
just wanted the comment of the Judge
Advocate General.
Colonel
Royall. I am not making any motion at
this time directed to the Commission. My
request is that I be permitted to make certain inquiries of the Commission to
determine whether or not we think there should be a challenge for cause. That is the request I make.
The
President. In other words, this is
related to your first challenge?
Colonel
Royall. The challenge for cause, not
peremptory. We will come to that
later. We have not been advised yet what
is to be done about that. But as to the
challenge for cause, I desire to ask the Commission some general questions, and
if these general questions develop any situation peculiar to an individual
member of the Commission, I desire to pursue that by further inquiry of the
Commission, if that is appropriate.
The
President. We will consider that.
Has
the prosecution any further remarks on the questions posed by the defense?
The
Judge Advocate General. The procedure is
a little unusual. The challenging side
customarily presents the ground of its challenge, and then the challenged
member of the Commission or the Court, in the ordinary court martial, states
his position or familiarity with the case.
However, under the circumstances of this case, I see no serious
objection to the procedure requested.
The
President. The Commission will grant
your motion.
Colonel
Royall. I would like to say that, in
view of the great newspaper publicity that has been given to this matter, in
spite of efforts to suppress it, I wish to inquire whether
14
any member of the Commission has to any
degree the feeling that the circumstances under which the Commission is
appointed would make it difficult or embarrassing for him to reach a judgment
in favor of the defendants in the event the evidence should so indicate.
I
hear no answer, and I assume there is no such--
The
President. Well, we are just considering
the question.
Colonel
Royall. I see, sir.
The
President. I will give you the answer.
Colonel
Royall. Yes, I see.
The
President. There seems to be unanimity
of opinion in the answer "no" to your question.
Colonel
Royall. Giving weight, of course, to the
fact that there are certain elements of the offenses charged which differ in
times of peace and times of war, an element to which the Commission can
properly give consideration, I ask the members of the Commission if, aside from
those legal considerations, the fact that this trial is being conducted in time
of war would in any manner incline the Commission to deal more harshly with the
defendants in the matter of conviction or sentence than they would if it were
in time of peace.
The
President. I do not consider it a proper
question. The Commission does not
consider that a proper question to consider.
Colonel
Royall. We have no other questions to
ask.
The
defense has no challenges for cause.
Colonel
Munson. Is any challenge, may I ask the Commission,
peremptorily to be allowed?
The
President. The question has not been
decided, as I
15
take it, on the motion before the
Commission of a challenge to the general jurisdiction of the Commission. That has not been decided yet.
Colonel
Dowell. May it please the
Commission: The defense has presented
nothing further, in that connection, than merely to go on record as not
admitting the constitutionality of the validity of this Commission or the
method of its appointment by proceeding to participate in the trial. No motion has been intended to be made at
this time whatever.
The
President. There seems to be nothing for
the Commission to pass on, then, beyond the making of record the statements of
the opposing sides. So I will instruct
the procedure of the organization of the Commission to go ahead.
Colonel
Munson. Is any challenge of a peremptory
nature to be permitted?
The
President. We will not act on that
unless there is some challenge before the Commission.
Colonel
Dowell. The defense would like to
exercise its right to one peremptory challenge.
Colonel
Munson. The prosecution, I think,
questions the right of the defense to phrase the statement in that manner--that
it has a right to one peremptory challenge.
The
President. The Commission will hear the
discussion on that, if any is desirable, by the Attorney General.
The
Attorney General. It is a matter of
right, of course, for you to decide on, and under the powers given you by the
President, it is perfectly clear that you can refuse any peremptory
challenges. That is our view as a matter
of law of
16
your powers under the Commission.
The
President. Is there any comment from the
defense?
Colonel
Dowell. If it please the Court, I wish
to call your attention first to Article of War 18, pertaining to challenges,
which reads as follows:
“Members
of a general or special court martial may be challenged by the accused or the
trial judge advocate for cause stated to the court. The court shall determine the relevancy or
validity thereof and shall not receive a challenge of more than one member at a
time. Challenges by the trial judge
advocate shall ordinarily be presented and decided before those by the accused
are offered. Each side shall be entitled
to one peremptory challenge; but the law member of the court shall not be
challenged except for cause.”
It
will be noted that that Article of War 18 which I have just read relates only
to general courts martial. Article of
War 38 reads:
“President
may prescribe rules. The President may,
by regulations, which he may modify from time to time, prescribe the procedure,
including modes of proof, in cases before courts-martial, courts of inquiry,
military commission, and other military tribunals, which regulations shall,
insofar as he shall deem practicable, apply the rules of evidence generally
recognized in the trial of criminal cases in the district courts of the United
States: Provided,”
and
this is a proviso on which the defense bases its right:
17
“That nothing contrary to or inconsistent
with these articles shall be so prescribed.”
Continuing with the further proviso:
“Provided
further, that all rules made in pursuance of this article shall be laid before
the Congress annually.”
It
is the understanding of the defense that a rule of procedure has been
prescribed denying the defense, or denying anyone on either side, the right of
peremptory challenge.
I
shall ask, for the information of the defense, whether that rule has been
approved by the President of the
The
Judge Advocate General. While the
prosecution does not believe and agree with the defense that, as a matter of
right, it has the right to a peremptory challenge, it has no objection as a
matter of procedure.
Colonel
Dowell. Then, based upon the first
proviso to Article of War 38 in its relation to Article of War 18, that proviso
being, "That nothing contrary to or inconsistent with these articles shall
be so prescribed," which may be prescribed as a rule of procedure, the
defense requests the right to exercise one peremptory challenge.
The
President. Is there any further comment?
The
Judge Advocate General. I do not think
so.
The
President. Does the Commission care to
be informed in any way further on the point at issue?
The
Commission will be closed.
(The Commission was closed. When reopened the following occurred:)
18
Colonel
Munson. There is at this time another
reporter present at the table, and I will ask
that he and Mr. Harkins be sworn at the
same time.
(The
following oath was administered to J. Cheater Wilfong and Lloyd L. Harkins,
reporters:)
Colonel
Munson. You solemnly swear that you will
faithfully perform the duties of reporters to this Commission. So help you God.
The
President. The Commission will not
entertain a preliminary challenge from either side.
Colonel
Munson. I therefore assume that there is
no challenge for cause?
Colonel
Royall. That has already been announced.
Colonel
Munson. Except such as has already been
made?
Colonel
Royall. We have made no challenge.
Colonel
Munson. We are now ready to swear the
court. You, Major General McCoy, Major
General Grant, Major General Winship, Major General Gasser, Brigadier General
Henry, Brigadier General Lewis, and Brigadier General Kennedy, do swear that
you will well and truly try and determine, according to the evidence, the
matter now before you, between the United States of America and the persons to
be tried, and that you will duly administer justice, without partiality, favor
or affection, according to the provisions of the rules and articles for
government of the armies of the United States, so far as the same are
applicable to trials before this Military Commission, under the provisions laid
down for its guidance in the order of the President of July 2, 1942, creating
the Commission; and if any doubt should arise not ex-
19
plained by said articles, then
according to your conscience, the best of your understanding, and the custom of
war in like cases; and you do further swear that you will not divulge the
findings or sentence of the Military Commission until they shall be published
by the proper authority or duly announced by the Commission, except to the
Trial Judge Advocates and Assistant Trial Judge Advocates; neither will you
disclose or discover the vote or opinion of any particular member of the
Commission upon a challenge or upon the findings or sentence, unless required
to give evidence thereof as a witness by a court of justice in due course of law. So help you God.
The
President. I will swear the Trial Judge
Advocates and Assistant Trial Judge Advocates.
You,
Francis Biddle, Attorney General of the United States, and Major General Myron
Cramer, the Judge Advocate General of the Army, do separately swear that you
will faithfully and impartially perform the duties of Trial Judge Advocates and
that you will not divulge the findings or sentence of this Military Commission
to any but the proper authority until they shall be duly disclosed. So help you God.
I
think I will ask you to swear your assistants.
The
Judge Advocate General. You, Oscar Cox,
Assistant Solicitor General of the United States, James H. Rowe, Jr., Assistant
to the Attorney General, Colonel F. Granville Munson, Colonel John M. Weir, and
Colonel Erwin M. Treusch, all being officers of the Judge Advocate General's
Department, swear that you will faithfully and impartially perform the duties
of Assistant Trial Judge Advocates and will not divulge the findings or
sentence of the Commission to any but the proper
20
authority until they shall be duly
disclosed. So help you God.
The
President. I shall swear all those
present as to general secrecy.
Colonel
Munson. May it please the Commission,
there are several typists connected with the reporters' force who are across
the hall, and it might be well for them to be sworn at the same time.
The
President. I think it will be well for
anybody coming in or out of this room to be sworn at this time.
Colonel
Royall. May I make any inquiry,
sir? We do not know the substance of
this oath, but from the standpoint of the defense counsel it is possible that
some limited disclosure would have to be made if someone sought to assert the
civil rights of these defendants; and we conceive it our duty not to take an
oath that would prevent us from so doing.
The
President. You may look at the form of
the oath (handing Colonel Royall a document).
Colonel
Royall. Thank you, sir.
We
have two typists also who have not come in.
There may be no necessity for their coming in at all.
It
is our opinion, sir, that as far as defense counsel are concerned, it is
considerably broader than the obligation taken by the Judge Advocates, and it
may conceivably preclude us from what we conceive our duty to be. Therefore we would respectfully request that
the defense counsel be given an oath similar to that taken by the prosecution.
The
President. I see no objection. This applies to the defense counsel
only. I will ask that you let those to
whom you wish to have administered this same form of oath stand
21
and raise their right hands.
(The
President then administered the following oath:)
The
President. Colonel Dowell, Colonel
Royall, Colonel Ristine, Major Stone, and Captain Hummell, do you swear or
affirm that you will faithfully and impartially perform the duties of Defense
Counsel, and will not divulge the findings or sentence of the court to any but
the proper authority until they shall be duly disclosed? So help you God.
I
will now administer the general oath to those present who have not already been
sworn. You will all raise your hands,
please, excepting the prisoners.
Do
each of you here present solemnly swear that you will not divulge the
proceedings taken in this trial to any one outside the court room until
released from your obligation by proper authority or required so to do by such
proper authority?
Lieutenant
Page, will you see that you have a list of those that have already taken the
oath, and should any others be admitted who have not taken the oath, you will
bring it to the attention of the Commission, please.
The
Commission makes this statement, that it considers that it has power to punish
for contempt of court any breach of these oaths.
The
Court will be seated and we will proceed.
Colonel
Munson. If the Commission please, I
shall now read the charges and specifications, the affidavit thereto, and the
order of reference to this Commission for trial.
Before
receiving pleas to the general issue I ask if there are any special pleas or motions
to be made at this
22
time.
Colonel
Royall. There are some special pleas.
Colonel
Munson. Before pleading to the general
issue?
Colonel
Royall. Yes.
Colonel
Munson. Will you make them at this time,
then?
Colonel
Royall. If the Commission please, each
of the defendants--I assume I can include yours in this?
Colonel
Ristine. Yes.
Colonel
Royall (Continuing). --pleads lack of
jurisdiction over the persons of the defendants. We desire to state, first, that they are not
included within the class of persons defined in Article of War 2, with which I
am sure the Court is familiar, but which I will read if you so desire. They cannot, as we conceive it, be made
subject to it by Presidential proclamation issued after the date of the alleged
commission of an offense; and therefore the President's proclamation cannot
enlarge what it would otherwise have been.
As
to the charges based upon Articles of War 81 and 82, there is no allegation
that these persons were found in any of the fortifications, posts, quarters, or
encampments of any of the armies of the
I
may be wrong about that. I said it was
not alleged. There may be an allegation
sufficient to cover that. It will
possibly arise later, and I will state it now as a plea, that they are not
included as the class of persons defined in Articles 81 and 82.
We
further desire to enter a plea to the jurisdiction of this court over the
offenses charged, and I suppose it would be in order for me to present all my
pleas to the
23
jurisdiction in one, without taking
them up separately, unless the court decides otherwise.
The
President. I would like defense counsel
to take cognizance of the fact that this is not a court in the usually accepted
term or as referred to in the Court Martial Manual. This is a Military Commission, and please use
that term.
Colonel
Royall. I will try to do so, sir.
The
President. I know it is an easy habit
for us all to speak of a court, but we have felt that we should emphasize the
word "Commission."
Colonel
Royall. I will make every effort to do
that. From force of habit I may lapse
every now and then into the use of the word "court," but I will try
not to do so.
The
second plea to the jurisdiction is that the court does not have jurisdiction of
the subject matter of these charges.
There is a difference between the charge of Spying and the other
charges. One of our grounds is
applicable to charges other than Spying, and I will address myself to that,
briefly, first.
All
the other charges are offenses of which the civil law can take cognizance. They are covered by specific statutes in the
civil law, and the civil courts are open for their enforcement; and we
therefore take the position that all the other charges should be dismissed.
Unless
further argument calls for it, I am not going to elaborate by reading the civil
statutes which cover all the other charges.
I will do so if it is permitted by the Commission and the argument so
requires.
The
other ground of lack of jurisdiction over the subject
24
matter arises out of facts which we
have intimated in our first remarks; and that argument is applicable to all the
charges. It is based on the fact that
the order creating this Commission is violative of express Congressional
enactment.
Article
38, which has been read to you by Colonel Dowell in connection with the right
to challenge, specifically provides, as we construe it, that the rules of
military commissions cannot violate any of the express rules for courts martial
set out in the Articles of War. The
rules for this Commission, we contend, violate the express provisions of the
Articles of War in several particulars.
We conceive that they violate the Articles of War in connection with
Article 43, which specifically provides that a death sentence may be imposed
only by unanimous vote.
They
violate Article 70 which prescribes a method of preliminary investigation
before charges can be tried. I do not
know whether the order itself violates Article 17 in depriving these defendants
of civil counsel before this Commission, but as applied the order has so
deprived them.
The
order also expressly violates Articles 46 and 50 ½ construed together.
Article
46 prescribes that military commissions are subject to the method of review
prescribed by Article 50 ½. That is, it
so provides if you read the two sections together; and this order prescribes a
different method of review, fundamentally and radically different, from that
prescribed by the Articles of War.
Finally,
the order gives an application of power as to other rules or rules in general,
which we do not think is
25
consistent with many provisions of the
Articles of War.
That
is our position.
The
Attorney General. May it please the
Commission, it seems to me that it is a little bit difficult to argue these
differences in vacuo, without knowing precisely what these
charges are; and with your permission, if it is appropriate, I should like to
read the charges so that I can argue to the charges.
The first specification of the first
charge is as follows (reading):
“In that, during the month of June,
1942, the prisoners”--the prisoners are then named--“being enemies of the
United States and acting for and on behalf of the German Reich, a belligerent
enemy nation, secretly and covertly passed, in civilian dress, contrary to the
law of war, through the military and naval lines and defenses of the United
States, along the Atlantic Coast, and went behind such lines and defenses in
civilian dress within zones of military operations and elsewhere, for the
purpose of committing acts of sabotage, espionage and other hostile acts, and
in particular, to destroy certain war industries, war utilities and war materials
within the United States.”
As
the first specification gives the substance of the other charges, I will not at
this time read all of them, except to say that the charge of Espionage is
specifically covered and that there is a charge of Conspiracy, going to all the
defendants, to commit the acts which are described in the first specification
of the first charge.
26
You
will note that the specification does not, as would an indictment, set out any
crime cognizable by a civilian court. I
know of no statute which provides that it shall be a civil crime, if I may put
it that way, triable by a civil court, to pass, during a time of war, first, in
uniform, and then concealed as spies in civilian uniform, across the lines of
the enemy of the country from which they came.
Therefore,
first, this is an offense against the armed forces of the
Now,
with respect to the other argument of counsel for the defendants, I think that
all that is necessary is call the Commission's attention to Article 38.
I
think I need not say to the members of the Commission, as they must well know,
that commissions for many years have been proper tribunals, either set up by
the President, the Secretary of War, or by commanding Generals to try certain
types of offenses. It is perfectly clear
that one of the very purposes of commissions is to form a tribunal that is not
bound by the rules of courts martial. It
is true that where you wish to follow those rules, it is customary to do so,
where it does not conflict with any of the powers or duties set up in the
Commission appointing you.
Commissions
are referred to from time to time in the Articles of War themselves. If I recollect correctly, they are referred
to both in Article 81 and Article 82, under which these offenses are described;
and particularly I refer to
27
Article 38 of which Colonel Royall
spoke.
Let
us see precisely what Article 38 provides (reading):
"The President may, by
regulations, which he may modify from time to time, prescribe the procedure,
including modes of proof, in cases before courts-martial, courts of inquiry,
military commissions, and other military tribunals, which regulations shall, in
so far as he shall deem practicable, apply the rules of evidence generally
recognized in the trial of criminal cases in the District Courts of the United
States."
Now,
this is the essential part of this paragraph:
"Provided,
that nothing contrary to or inconsistent with these articles shall be so
prescribed."
We
recognized from the beginning that commissions are not courts-martial and are
not bound by the regulations of courts-martial, which seems to me, if I may use
the expression, Hornbook military law.
There is nothing, therefore, inconsistent in not following the rules of
courts-martial, when you set up a commission.
All
of the other regulations quoted by Colonel Royall are regulations with respect
to courts-martial and are, therefore, not in any way applicable.
You
must look, I take it, to the powers of this Commission and the basic power of
the President to appoint a Commission to try enemies of the country in time of
war. It does not seem to me that this is
an appropriate place to argue at any length the question raised as to the
jurisdiction of a court-martial where civil courts are sitting. That, at the appropriate time, I assume, will
be for a civil court to
28
decide, should the matter be brought to
their attention.
In
the same way this proclamation to which Colonel Royall referred is a
proclamation dealing with the civil rights of enemies in civil courts. The law has always been that an Executive can
certainly proscribe the procedure in time of war particularly with respect to
aliens and, I take it, with respect to enemies.
But
let me emphasize that this proclamation deals in no wise with the powers of the
Commission. It deals with the grace that
may be accorded to enemies and to aliens by a civil tribunal, and therefore
you, it seems to me, with due respect, are not concerned with it.
Let
me add that I cannot conceive of anyone successfully arguing that in time of
war and in time of actual invasion by enemies, charged to be enemies, or by
spies, charged to be spies--and we are dealing with charges, since there is no
evidence before you--by persons coming in to commit sabotage, with that
intention, changing their uniform and putting on civilian garb or civilian
dress, in order to get behind the military and naval lines established to
prevent that very invasion--I cannot imagine any military tribunal holding that
you have no jurisdiction. If you have
any jurisdiction separate from the jurisdictions of District Courts, certainly
that jurisdiction must exist under those circumstances. It can be so easily illustrated, but I will
not take up the time of the Commission very much longer.
Supposing
there had been an invading force, soldiers or submarines, or parachutist
dropping behind the lines: there is no
difference, as far as your jurisdiction is concerned,
29
except the added difference that the
crime is increased because soldiers not only invaded this country, but they
have changed themselves into civilians and, as such, have absolutely no rights.
Colonel
Dowell. May it please the Commission, we
shall cite what we believe is substantiation for the fact that these crimes
alleged in these charges, with the exception of Spying, are civil offenses for
which the statutes of the United States provide punishment; and we base the
right of the defendant to go into civil courts upon the broad policy that this
country is dominantly one in which government is exercised by civil authority,
and that military authority comes to their assistance only in cases of
necessity, where it is impracticable or impossible for the civil authorities to
function in the manner prescribed by the Congress.
I
start with the statement that that is one of the points upon which we fought
the Revolutionary War, to get away from military domination, to make the civil
authority ascendant and operative at such times as the civil authority is able
and capable of operating.
Military
Commissions and other similar courts, provost courts, councils of war, etc.,
have come into effect in our history at times when it was impracticable or
impossible for civil authority to function.
I cite the case of military government where our forces have taken enemy
territory and deprived them of their own government, and they have set up
something to take its place, to guarantee the rights of property and person,
because there is nothing else there, and other courts obviously cannot
function.
30
We
set up military commissions and provost courts, but even then our history has
been that just as soon as it is practicable to set up a civil agency where our
courts can function, the military assistance is no longer required and ceases,
the civil authority taking its proper place.
That
is applicable also in cases of martial law.
It is quite proper to set up in a martial law situation the necessary
courts, call them whatever name you will, or military commissions and other
courts to protect the rights of persons and property in those localities where
the civil courts for the time being are unable to function. Just as soon, however, as that situation
ceases, as that situation ceases, so that the civil courts are again capable of
functioning, it is improper for the military to continue to crowd them aside.
I
need cite only the case of General Jackson in
If
we are incapable in a declared military law situation of setting up military courts
to try civilians for offenses against the civil law, how can it be contended
that in a situation which is not a military situation, or actively a military
operation situation, these courts called Military Commissions may be set up for
the trial of civilians?
31
I
cite just one more point. It is well
known to us in the military service that soldiers are frequently arrested by
civilians and turned over to the military authorities for trial in cases where
there is concurrent jurisdiction, as a matter of comity, and because it saves
expense to the civil authorities, and the military are more familiar with the
soldier's situation and better capable of trying soldiers.
I
present before specific statutes are cited the further observation that it is
most unusual for civilians to arrest civilians for an offense cognizable by the
civil law and triable in the courts which are open and ready to try those
cases, to take them and turn them over to the military authorities for trial.
Colonel
Royall. I could not improve, if the
Commission please, and would not seek to do so, on anything that Colonel Dowell
has said. I merely wish to supplement it
by calling your attention to a few statutes which we contend deal sufficiently
from the civil law standpoint with every offense charged here.
Title
50 of Chapter 4 of the
“Whoever,
for the purpose of obtaining information and with reason to believe that such
information may be used to the injury of the United States, goes upon any government
or defense property or installation or restrict-
32
ed area, or obtains information
concerning such a place;
“Any
person who obtains or makes sketches, photographs, etc., of anything connected
with the national defense for the purpose of obtaining information relative
thereto with reason to believe that the same may be used to the injury of the
United States;
“Any person who receives or obtains any
document, photograph, plan, etc., connected with the national defense, having
reason to believe that it will be disposed of contrary to the provisions of
Title 50; or
“Any
person who communicates or attempts to communicate any document, photograph,
plan, etc., relating to the national defense to any person not entitled to
receive it or willfully fails to deliver the same to the officer or employee of
the
The
next section is more or less on Negligence, which would not arise here.
For
each of these offenses there is a penalty provided, and that has been increased
within the past year or two, from
Section
32 of the same Title provides:
“Whoever
with reason to believe that it may be used to the injury of the United States
communicates any document, photograph, plan, etc., relating to the national
defense to any foreign government or military or naval force or officer, agent,
or employee of such foreign government, is subject to not more than 20 years
imprison-
33
ment in time of peace and not more than
30 years in time of war.”
Which
shows that Congress has expressly legislated not only for offenses in peace but
offenses are now committed.
The
next sub-section provides:
“Any
person in time of war, with intent that the information shall be communicated
to the enemy, who collects, communicates, or attempts to elicit information
with respect to movement or disposition of the armed forces of the United States
or with respect to plans for military operations or with respect to plans for
military operations or with respect to fortifications, or any other information
relating to the public defense which might be useful to the enemy, is subject
to punishment by death or imprisonment for not more than 30 years.”
That
shows that for this offense in time of war, which is practically spying, or
espionage with the elements of spying, or espionage with the elements of
spying, in the civil courts the death penalty could be inflicted, and that
Congress had taken that into account and had legislated for the war contingency
as well as for peace times.
Section
34 provides punishment for conspiracy to do those things mentioned in the
preceding sections.
Section
35 provides for harboring or concealing any person who has committed the
foregoing offenses.
Section
36 authorizes the President by proclamation to designate restricted places
under Section 31; which shows that in the designation of those restricted
places Congress has legislated for an offense committed therein under civil
procedure.
34
Chapter
4 (a), sections 45 to 45 (d), relating to photographic defense installations,
is not particularly material here.
Chapter
6 relates to sabotage. Section 102
thereof provides:
“Whoever, during war time, with intent
to injure the United States or interfere with carrying on the war, willfully
injures or destroys any war material or premises for war utilities, shall be
subject to a fine of not more that $10,000 or imprisonment for not more than 30
years, or both.”
Section
103:
“Whoever
during war time attempts to injure the United States or interfere with carrying
on the war, willfully makes in a defective manner, or attempts to do so, any
war material,” etc.
That is another form of sabotage, and
it is unnecessary to read that.
Anyone who destroys any national
defense material is subject to ten years imprisonment and $10,000 fine.
Anyone
who at any time makes defective national defense material, etc., is subject to
$10,000 fine or 10 years imprisonment.
Title
18, Section 88, of the United States Code, deals with Conspiracy in connection
with these matters.
It
is perfectly manifest that Congress has legislated by civil law for everything
that could conceivably be included in these charges. Not only is that true, but it is a matter of
common knowledge of which this Commission could take judicial notice that,
pending in Congress, either now or last week,
35
are bills to increase these penalties,
in some instances, to death, which indicates that Congress is still proceeding
on the assumption that the problem is one for civil legislation for civil
courts.
That
supplements merely what Colonel Dowell has so excellently expressed. I just want to make one more observation on
the second matter discussed by the Attorney General.
Article
38, which has been read to the Commission frequently, and which I shall not
read again, makes a very real and definite distinction between the right to
vary the rules in the District Court, which is qualified by the words “in so far
as he shall deem practicable.”
That
relates merely to the rules of the District Court as applicable to a military
commission. But there is no such
qualification on the express provision in Article 38 that “nothing contrary to
or inconsistent with these articles shall be so prescribed.” That means, for military commissions; and it
seems to me that there is no legitimate explanation of that language, certainly
no court authority that we have been able to find--and our time has been limited--has
construed it as meaning other than what it apparently means on its face.
In
one instance, however, we would not even have to deal with Article 38. Article 46, which is specifically referred to
in Article 50½, deals with military commissions in the matter of review; and
you do not have to resort to any construction of language. That expressly provides for a system of
review which the Presidential Order has negatived and denied.
36
There might possibly be some
distinction in this connection on the basis of this motion between citizens and
aliens; but since there is no allegation in the charges themselves that authorizes
such distinction, it may arise later in the question of proof on certain of the
charges.
In
conclusion, we say that since there is a difference in some of the decisions on
spying, in frankness to the Commission, these charges, as we conceive the law,
should be dismissed for lack of jurisdiction.
The
President. Are there any further
remarks?
The
Judge Advocate General. With reference
to the remarks of counsel for the defense I invite the Commission's attention
to the fact that the 81st and 82nd Articles of War specifically give the power
to a military commission to try the offenses of which these defendants are
charged here by Charge 2 and Charge 3 before the Commission. So there can be no question but what this
Commission has jurisdiction under those articles.
Article
of War 15 provides:
“The provisions of these articles
conferring jurisdiction upon courts-martial shall not be construed as depriving
military commissions, provost courts, or other military tribunals of concurrent
jurisdiction in respect of offenders or offenses that by statute or by the law
of war be triable by such military commissions, provost courts, or other
military tribunals.”
The
specification of Charge 1 of entering this country in the way stated in the
specification shows very plainly a violation of the law of war.
The
conspiracy charge at the end includes violation of
37
the law of war. Cases have always been tried, from time
immemorial, by military commissions; and the fact that there may be in civil
courts some statute that may cover a part of these crimes is no reason for
saying that a military commission is deprived of its powers for that reason.
The
comparison drawn with martial law by the counsel for the defense is an entirely
different situation from that of the prisoners before the bar of this
Commission today; that is, a situation existing in our own country, where we
have our own forces, and declaring martial law for civil offenses. This is an offense against the law of war, of
which this Commission has jurisdiction.
38
Colonel Dowell. May
it please the Commission: I think that
in a number of articles of war, including 81, 82, 38, 46, and 50½ by reference,
and I think one other, mention is made of military commissions. There is no doubt whatever that military
commissions may function in proper cases and that jurisdiction of the military
commission over those cases is unquestionable provided the situation is such as
to justify the military commission in taking cognizance of the case. I merely point out that since the civil law
has provided for the trial of these offenses, except spying--and spying is also
provided for the civil law--it places jurisdiction of this offense under either
court martial or military commission.
But
as to the other offenses, let us keep in mind that the two jurisdictions may
take cognizance. Why two? Certainly because there must be two
situations in which they would take cognizance of those cases and have
jurisdiction over them. I maintain that
the reference to the military commission in the articles of war arises from the
constitutional provision that the Congress shall make rules for the government
of the Army and the Navy of the United States, so that is a rule made under
that power and for taking care of the cases that I have generally mentioned,
where the military is in close proximity or the civil authority is incapable of
taking over jurisdiction and trying the cases, which is not true in this
instance. The civil authority first took
jurisdiction, and it has the machinery, the courts, the laws, and the penalties
for disposing of the cases.
The
President. There seems to be no further
argument or discussion. Does any member
of the Commission desire enlightenment from either side?
39
(There was no response.)
The
President. The Commission will be
closed.
(The
Commission was then closed. When it
reopened, the following occurred:)
The
President. Are all the prisoners
present?
The
Guard. Yes, sir.
The
President. Lieutenant Page, is there any
reason why the Court should not reopen?
Lieutenant
Page. None that I know of, sir.
The
President. The Commission will reopen.
The
Commission does not sustain the objection of the defense. Proceed.
The
Judge Advocate General. I understand
that there are further remarks to be made by the defense. I would suggest that perhaps it would clarify
matters if before those motions are made the charges and specifications be read
to the Court.
Colonel
Royall. I think that should be done.
Colonel
Munson. I shall now read the charges and
specifications, the affidavit thereto, and the order of reference to this
Commission for trial, during which the accused and the personnel of the
prosecution and the defense are requested to stand.
“
“Charges and Specifications in Cases
of Ernest Peter Burger, George John Dasch, Herbert Haupt, Heinrich Harm Heinck,
Edward John Kerling, Hermann Neubauer, Richard Quirin, and Werner Thiel.
40
Burger,
George John Dasch, Herbert Haupt, Heinrich Harm Heinck, Edward John Kerling,
Hermann Neubauer, Richard Quirin and Werner Thiel, being enemies of the United
States and acting for and on behalf of the German Reich, a belligerent enemy
nation, secretly and covertly passed in civilian dress, contrary to the law of
war, through the military and naval lines and defenses of the United States,
along the Atlantic Coast, and went behind such lines and defenses in civilian
dress within zones of military operations and elsewhere, for the purpose of
committing acts of sabotage, espionage and other hostile acts, and in
particular, to destroy certain war industries, war utilities and
war materials within the
“Specification 2. In that, during the month of June, 1942, the
prisoners, Ernest Peter Burger, George John Dasch, Herbert Haupt, Heinrich Harm
Heinck, Edward John Kerling, Hermann Neubauer, Richard Quirin, And Werner
Thiel, being enemies of the United States and acting for and on behalf of the
German Reich, a belligerent enemy nation, appeared, contrary to the law of war,
behind the military and naval defenses and lines of the United States, within
zones of military operations and elsewhere, for the purpose of committing or
attempting to commit sabotage, espionage, and other hostile acts, without being
in the uniform of the armed forces of the German Reich, and planned and
attempted to destroy and sabotage war industries, war utilities and war
materials
41
within
the
“Charge II: Violation of the 81st Article of War
“Specification: In that, during the month of June, 1942, the
prisoners, Ernest Peter Burger, George John Dasch, Herbert Haupt, Heinrich Harm
Heinck, Edward John Kerling, Hermann Neubauer, Richard Quirin and Werner Thiel,
being enemies of the United States and acting for and on behalf of the German
Reich, a belligerent enemy nation, and without being in the uniform of the
armed forces of that nation, relieves or attempted to relieve enemies of the
United States with arms, ammunition, supplies, money and other things, and
knowingly harbored, protected and held correspondence with and gave
intelligence to enemies of the United States by entering the territorial limits
of the United States, in the company of other enemies of the United States,
with explosives, money and other supplies with which they relieved each other
and relieved the German Reich, for the purpose of destroying and sabotaging war
industries, transportation facilities or war materials of the
“Charge III: Violation of the 82nd Article of War.
“Specification: In that, during the month of June, 1942, the
prisoners, Ernest Peter Burger, George
42
John
Dasch, Herbert Haupt, Heinrich Harm Heinck, Edward John Kerling, Hermann
Neubauer, Richard Quirin, and Werner Thiel, being enemies of the United States
and acting for and on behalf of the German Reich, a belligerent enemy nation,
were, in time of war, found lurking or acting as spies in or about the
fortifications, posts and encampments of the armies of the United States and
elsewhere, and secretly and covertly passed through the military and naval
lines and defenses of the United States, along the Atlantic Coast, and went
about through and behind said lines and defenses and about the fortifications,
posts and encampments of the armies of the United States, in zones of military
operations and elsewhere, disguised in civilian clothes and under false names,
for the purpose of committing sabotage and other hostile acts against the
United States, and for the purpose of communicating intelligence relating to
such sabotage and other hostile acts to each other, to the German Reich, and to
other enemies of the United States, during the course of such activities and
thereafter.
“Charge IV: Conspiracy to Commit All of the Above Acts.
“Specification: In that, during the year 1942, the prisoners,
Ernest Peter Burger, George John Dasch, Herbert Haupt, Heinrich Harm Heinck,
Edward John Kerling, Hermann Neubauer, Richard Quirin, and Werner Thiel, being
enemies of the United States and
43
acting
for and on behalf of the German Reich, a belligerent enemy nation, did plot,
plan, and conspire with each other, with the German Reich, and with other
enemies of the
That
is first signed in ink “F. Granville Munson,” followed by “F. Granville Munson,
Colonel, U.S. Army,” type-written.
“Before me, the undersigned, authorized
by law to administer oaths in cases of
this character, personally appeared
Colonel F. Granville Munson, U.S. Army, this 3rd day of July, 1942, and made
oath that he is a person subject to military law, and that he personally signed
the foregoing charges and specifications, and that he has investigated the
matters set forth in said specifications, and that the same are true, to the best
of his knowledge and belief.”
That
is signed in ink “Myron C. Cramer” and is followed by “Myron C. Cramer, Major
General, U.S. Army, The Judge Advocate General” typewritten.
- - -
“WAR
DEPARTMENT
“The Adjutant General's Office
“
“
“The
Honorable Francis Biddle, Attorney General of the
“1.
By direction of the President, the attached charges and specifications, duly
sworn to on July 3,
44
1942,
against Ernest Peter Burger, George John Dasch, Herbert Haupt (otherwise known
as Herbert Hans Haupt), Heinrich Harm Heinck (otherwise known as Henry Harm
Heinck), Edward John Kerling, Hermann Neubauer (otherwise known as Hermann Otto
Neubauer), Richard Quirin, and Werner Thiel, are referred to you, for trial
before the Military Commission established by an order of the President, dated
July 2, 1942, as the Trial Judge Advocates of said Military Commission and the
persons designated in said order to conduct the prosecution before said
Commission, and by further direction of the President, you are vested with all
the powers and duties of a trial judge advocate of a general court-martial.
“2.
The employment of a stenographic reporter or firm of reporters is authorized
and three copies of the record of trial, for the use of the prosecution, and
two copies of said record, for the use of the defense, in addition to the
original copy to be submitted to the President, are authorized in each case
before the Commission.
“By
order of the Secretary of War:
“J.A. ULIO
“Major General,
“The Adjutant General.”
Colonel
Royall. May we have a copy of that at
some appropriate time?
Colonel
Munson. Yes. Are your clients ready to plead?
Colonel
Royal. We want to make a motion to
strike.
The
President. May I ask you to repeat your
last statement, Colonel?
45
Colonel
Royall. We desire to make a motion to
strike certain of the specifications. Is
the Commission ready for me to proceed?
The
President. If you please.
Colonel
Royall. The defendants desire to move
and do move to strike Charge 1, Specification 1. I assume, Colonel Ristine, that that is on
behalf of all the defendants?
Colonel
Ristine. Yes, sir.
Colonel
Royall. That charge is a violation of
the law of war.
The
defendants contend that it is uncertain and indefinite in nature unless
conceivably it could be construed to charge the offense of spying. If it does charge the offense of spying or is
so intended or is so construed, it omits one essential element, namely, the
intention to communicate to the enemy, and is therefore defective. The elements of spying, as defined by
military authorities, embrace at least three elements: first, being within the lines or zones of operation;
second, secrecy or acting under false pretenses; third, intention to
communicate information. The last
element is missing from this specification.
Furthermore,
this specification in its other language cannot charge any violation of the law
of war, as we understand the term. It
merely might be construed to charge sabotage or espionage, which are not
violations of the law of war as we conceive it, because they are specifically
provided for by civil statute.
The
term "espionage" is somewhat confusing. There apparently is a distinction between
that and spying. As we conceive the
authorities to be, the distinction is that
46
espionage has nothing to do necessarily
with going without the uniform or entering the country or the lines in that
way; espionage can be committed by someone who is already in this country.
I
suppose the Court would prefer me to take up all these motions to strike at one
time, instead of stopping and having each one argued and determined separately?
The
President. We will leave that to your
discretion.
Colonel
Royall. Then, sir, in the interest of
preventing as much repetition as possible, we prefer to state our position on
each of the charges and specifications and have the prosecution reply, unless
there is a decision to the contrary.
The
defendants move to strike Charge 1, Specification 2. The grounds of that are similar, the real
difference between the two specifications being merely that in the first
specification under Charge 1 the words are “passing within the lines,” and in
the second, “appearing within the lines”; and that in the first specification
they say the defendants were not in the uniform of the German Reich, while in
the second they say they were in civilian dress, or vice versa. Anyway, the considerations are practically
the same.
Anticipating
a possible argument of the prosecution, it might conceivably be contended that
these specifications charged guerrilla warfare, which would be a violation of
the law of war. But an analysis of them
shows that that is not the case. There
is no charge, in the first place, that an element of guerrilla warfare requires
an overt act against an armed force, and there is no such charge set forth.
There
is also a question as to the sufficiency of the charge as to the zone of
operations, in the case of whether or
47
not it was guerrilla warfare, but I do
not assume that it was the intention to charge that anyhow in these
specifications.
There
is, in our opinion, sufficient ground to strike out both those specifications
under Charge 1, which we think is particularly applicable to the two citizens
who are included among the defendants.
We shall not go into that at this time; we do not think it is necessary.
Defendants
next move to strike Charge 2, which is a violation of the 81st Article of War.
The
President. Colonel Royall, may I
interrupt you for a moment? Since it
appears that this will be a presentation of one motion following another, as
you intimated, we should like to have the defense supply us with the substance
of its motions in writing.
Colonel
Royall. When would the Commission desire
that?
The
President. We should be glad to have you
continue, but we should also like to have you supply them to us in writing.
Colonel
Royall. I think we have a rough memorandum
here, which we could hand to you at the conclusion of the motions.
The
President. Something that would be
sufficient for us to make sure that we had not missed any points in your
seriatim presentation.
48
Colonel
Royall. Mine is in my handwriting.
The
President. How would you suggest,
General Cramer, in the course of the hearing, when we want something in writing
from either your side or the other, that we get it without wasting time? Would it be possible to have a stenographer
here specially charged with taking such motions?
The
Judge Advocate General. I think that can
be done. There will not be many more
motions after these are through. During
the course of the trial there won’t be any motions.
Colonel
Royall. It is unlikely.
The
Attorney General. So far as we are
concerned, General McCoy, whenever you request us to submit anything in
writing, since it would be in the nature of briefs and memoranda rather than in
record, I will simply have one of my associates dictate it and bring it in.
The
President. Would you accept that as an
easy way to furnish us with the substance of your motion?
Colonel
Royall. Yes, sir. We can do that. We are a little limited in force.
The
President. I did not want in any way to
delay the trial if I could devise some way in which the reporter could give us
a transcript of the motions, or something of that sort.
The
Judge Advocate General. You want the
motions themselves and not the arguments?
The
President. Not the arguments. I just wanted the motions, because there
seemed to be quite a number, and I did not want to rely on our memory.
Colonel
Royall. May we make this suggestion as
to this motion, because, as General Cramer has stated, it is unlikely
49
that there will be any other prolonged
motions, unless something arises? During
the
The
President. Thank you very much. That will be satisfactory.
Colonel
Royall. This Article of War 81--I am
sure the Commission is familiar with it--substantially provides against
relieving or attempting to relieve enemies of the United States with arms,
ammunition, supplies, money, or other thing, or knowingly harbors or protects
or holds correspondence with or gives intelligence to the enemy of the United
States.
That
is the substance of the Article. In the
first place, while we say this with some degree of doubt, we submit the
proposition that Article 81 is intended to apply to citizens of the
If
that is correct, as to the aliens who are charged in this case there is no
offense. That may sound like a strange
result to reach, but it is manifest that there are certain acts which an alien
could properly do which would be improper in the case of a citizen of this
nation.
The
specification does not prescribe which are aliens and which are not. One of two results would therefore follow, if
our premise is right. The specifications
would be defective for failing to allege an essential element, or the matter
50
would have to be determined when the
evidence is adduced, or it would be possible to amend by specifying which are
aliens and which are residents.
Now,
as to all of the defendants, there is another view or another reason why we
think this charge and specification is defective, and that is that in substance
it merely copies Article 81 and elaborates on it in language which, as we
contend, merely charges at the most espionage and sabotage, which are covered
by the civil law. We would repeat the
same arguments on that as have heretofore been made, and there is no necessity
for doing that.
Defendants
further move to strike Charge 3 in the specification thereunder, and state
frankly to the Commission that we are most uncertain as to whether that motion
lies. I do not care to say anything more
about that. We make it so that we may
assert the right, because we are moving to strike the others. But I do not know of any very sound argument
that we could advance in favor of it, and we will try not to advance merely
captious arguments.
With
respect to Charge 4 and the specifications thereunder, we also move to
strike. In the first place, that charge
is conspiracy to commit the other acts--what I meant to say is that that
charges conspiracy to commit the other acts.
Our
position on that is twofold: that there
is no law of war which embraces conspiracy as such, and therefore the charge
does not lie. In the second place, we
say that if it does lie, it is subject to the same defects for the conspiracy
as arise in the case of the first charges, which specify different
offenses. In other words, if they have
not sufficiently
51
charged the offenses in Charges 1, 2,
or 3, of course the conspiracy to commit it could not be an offense properly
charged.
There
is no article of war covering conspiracy.
I think that statement is correct.
The
President. Will you recapitulate now
your motions?
Colonel
Royall. We move to strike each of the
charges and each of the specifications and make a separate and specific motion
as to each charge and as to each specification under each charge, on the
grounds stated in the course of my presentation.
Colonel
Dowell. May I add the ground of
insufficiency, on the ground that the specifications, with the exception of that
under Charge 3, do not specifically state the offense in such a way that would
enable the accused to know the acts which are supposed to constitute the offense
and against which he is required to defend.
. Colonel
Royall. That is an additional ground.
The
President. We have about five minutes.
The
Attorney General. I can confine my
argument to that time, if you will bear with me.
May
it please the Commission: The argument
is based, it seems to me, on an entire misconception of the Law of War. We are not confined to the Articles of
War. We are charging offenses against
the law of war, which is common law.
That offense applies to the conspiracy.
As
you gentlemen know, it is not necessary to find a statutory defined offense
before a commission either in the Articles of War or elsewhere. I give as a famous example of
52
the type of offense that we are
charging the case of Major Andre, which was not an espionage case, though
espionage was involved, but it was passing through the enemy lines with the
purpose and intent of bribing an officer of the United States Army.
Moreover,
as I have said before, whether or not the acts which will be proved constitute
a civil offense has nothing to do with the situation, because the military
offense triable by your Commission is totally different from a civil offense
defined in a statute. Whether or not the
same proof is necessary is irrelevant.
To
show the difference itself, you simply have to refer to the penalties involved
in the two offenses. The penalty for the
military offense is entirely different from the penalty of the statutory civil
offense.
In
connection with the specifications themselves, chiefly for the purpose of
clarity, I draw your attention to the fact that the two specifications of
Charge 1 allege separate offenses in substance, in that in Charge 1 the
specification is that these defendants, and I quote, “went behind such lines
and defenses in civilian dress,” whereas in Specification 2 the charge is that
the defendants “appeared, contrary to the law of war, behind the military and
naval defenses and lines of the United States.”
With
respect to Article 81, it seems to me only necessary to point out that the
article is in nowise limited, as counsel for the defense suggests. The article is in its title, “Relieving,
Corresponding with, or Aiding the Enemy,” and it opens, “Whosoever relieves or
attempts to relieve.”
53
It
is not limited to citizens, aliens, or anyone else. Whosoever does this is punishable in the
manner specified.
It
seems to me that these motions really, in substance, go to the rest of the
matter; and although the question is raised technically in a somewhat different
question, it seems to me to be already covered by the ruling of the Commission,
which has held, I take it, that this Commission has jurisdiction over the
defendants, is properly constituted, and has the duty and power to try offenses
against the Law or War; and that therefore a discussion of whether or not other
offenses committed against the civil statutes are involved is clearly and
totally irrelevant.
There
has been suggestion, I think, here that these charges are not specific, and if
the motion is made on that ground it is out of order. Not being thoroughly familiar with your
procedure, I take it there could be a motion for, as we lawyers say, a bill of
particulars or for clarification, which would be in order; but I take it the
motion is not based on that at all, but goes to the roots of the matter, which
seem to me to have been disposed of by the ruling that the Commission has
already made.
Colonel
Royall. I merely wish to add this. We do not think that these arguments are
covered by the rulings already made.
In
reply specifically to the Attorney General, it is true that there is such a
thing as a law of war aside from the specific Articles of War, but we repeat
that we do not think they are charged, except in the case of spying, which we
are not arguing about, with any established law of war which has
54
been violated. The mere fact that it is a common law does
not mean that there must not be some precedent or some criterion, and we do not
know of any precedent or criterion for any of these charges except spying.
Now,
the word “whosoever” obviously cannot mean that it is a violation of law for a
German to aid the German Government, any more than it could be a violation of
law for an American to aid the American Government. Therefore, we think there is a very real
distinction between aliens and citizens under the 81st Article of War.
The
President. The Commission will recess
for lunch and open at
(At
55
AFTER RECESS
The
Commission reconvened at
The
President. The Commission is now open.
Colonel
Munson. It is requested that the record
show that all the personnel of the Commission, of the prosecution, and of the
defense who were present at the close of the previous session in this case are
again present, and that all the accused, to wit, eight, and the reporter also
are present.
Mr.
President, since the last session, Major William T. Thurman, of the Judge
Advocate General's Department, has been given a pass, and it is requested that
he be permitted to take the oath of secrecy as an assistant to the trial judge
advocate, the Judge Advocate General.
Shall
I administer the oath, or do you wish to administer it?
The
President. You may administer it.
Colonel
Munson. Do you solemnly swear that you
will not divulge the proceedings taken in this trial to anyone outside the
courtroom until released from your obligation by proper authority or required
so to do by such proper authority?
Major
Thurman. I do.
Colonel
Dowell. I wish to state that Captain
Hummell, of associate counsel, is absent on a temporary mission.
Colonel
Royall. With reference to the inquiry of
the President as to the possibility of reducing to writing our contentions
under the motion to strike, that has been done.
We should like those contentions to be incorporated in the record, if
that is permissible, not in substitution for but in addition to the contentions
heretofore made, although they are
56
in fact and in large part a summary of
them.
The
President. If there is no objection,
that will be done.
Colonel
Royall. They are as follows:
“Summary
of Defense Motions to strike under Section 71c of Manuel for Courts-Martial
“(a) Specification 1 of Charge 1. This specification charges a violation of the
laws of war. The defense recognizes the
laws of war and the fact that violations thereof may constitute punishable
offenses. The wording of specification 1
is so indefinite as not to inform the defendants of the particular offense
under the laws of war with which they are charged, unless it be the offense of spying. The offense of spying is insufficiently set
forth since the essential element of intent to communicate with the enemy is
not alleged. In this connection, note
the definition of spying as contained in the Hague Convention:
“"A
person can only be considered a spy when, acting clandestinely or on false
pretenses, he obtains or endeavors to obtain information in the zone of
operations of a belligerent, with the intention of communicating it to the
hostile party.”
“The
offenses of sabotage, espionage, etc. are not recognized as part of the laws of
war and, in any event, are fully covered by our statutes, making those offenses
civil crimes. The defense knows of no
precedent under the laws of war making it an offense for enemy civilians to be
in this country is not engaged in spying.
57
“(b) Specification 2. Motion to strike this specification is made
on the same grounds as set forth in Specification 1 of Charge 1.
“(c) Specification of Charge 2. This specification charges violation of the
81st Article of War. This Article
provides against relieving the enemy with arms, ammunition, etc. and holding
correspondence with and giving intelligence to the enemies of the
“(d)
Specification of Charge 3.
“The motion to strike this
specification is made on the general grounds stated in making the pleas to the
jurisdiction and on the general grounds asserted as to the other
specifications.
“(e)
Specification of Charge 4.
“The
motion of the defense to strike this specification is based on the fact that it
must fall
58
with
the striking out of the other specifications and on the further fact that
neither the laws of war nor the Articles of War make a mere conspiracy an
offense which is punishable, nor do they provide any penalty therefore
whatsoever.”
The
President. Does this complete your
argument?
Colonel
Royall. One this question, yes.
Colonel
Dowell. Speaking not on this question
but in justice to Colonel Royall, an associate in this case, and because of his
feeling in the matter lest it might prejudice the case of our defendants, the
arrangement as to presentation and participation in their defense by certain
individuals is according to my desire as senior defense counsel.
The
Judge Advocate General. I fail to
understand just what counsel is driving at.
The
President. Do you want to have it read
as you stated it, Colonel Dowell?
Colonel
Dowell. Yes, sir.
The
President. The reporter will read the
statement made by Colonel Dowell.
The
Reporter (reading).
“Colonel Dowell. Speaking not on this question but in justice
to Colonel Royall, an associate in this case, and because of his feeling in the
matter lest it might prejudice the case of our defendants, the arrangement as
to presentation and participation in their defense by certain individuals is
according to my desire as senior defense counsel.”
The
Judge Advocate General. There is no
objection.
The
President. If there is no objection, it
will be so
59
accepted.
The
Attorney General. We have nothing more
to argue.
The
President. The Court will be closed.
(The
Court was then closed. When it reopened,
the following occurred:)
60
The
President. The Commission is opened.
The
motions of the defense to strike are not sustained.
Colonel
Munson. I will now ask the accused to
plead to the charges and specifications, taking them in the order in which they
are named in the charge sheet.
Will
Ernest Peter Burger rise?
(Ernest Peter Burger stepped forward.)
Colonel
Munson. How do you plead to
Specification 1 of Charge 1?
Mr.
Burger. Not guilty.
The
Attorney General. May I interrupt, Mr.
President? I should like this defendant
and the other defendants to answer their own pleas, with no disrespect to
counsel.
Colonel
Royall. I did not know what the custom
was. Customarily in civil courts counsel
pleads for the prisoner.
The
President. That is the case in usual
military courts, but if you have no objection to the Attorney General's
suggestion, we will proceed in that manner.
Colonel
Royall. I have
The
President. The defendants will then
plead personally.
Colonel
Munson. You have already pleaded not
guilty to Specification 1 of Charge 1.
Mr.
Burger. Not guilty.
Colonel
Munson. To specification 2 of Charge 1?
Mr.
Burger. Not guilty.
Colonel
Munson. To Charge 1?
Mr.
Burger. Not guilty.
Colonel
Munson. To the Specification 1 of Charge
2?
Mr.
Burger. Also not guilty.
61
Colonel Munson. You plead not guilty to all of the charges
and specifications?
Mr. Burger. That is right.
Colonel Munson. Then, without going
through the list, that plead will be entered, with the permission of the
Commission--not guilty to all the charges and specifications.
Mr. Burger. Yes, sir.
Colonel Munson. George John Dasch.
(George
John Dasch stepped forward.)
Colonel Munson. How do you plead to Specification 1 of Charge
1?
Mr. Dasch. Not guilty, sir.
Colonel Munson. To Specification 2 of Charge 1?
Mr. Dasch. Not guilty, sir.
Colonel Munson. To Charge 1?
Mr. Dasch. Same way.
Colonel Munson. Not guilty?
Mr. Dasch. That is right.
Colonel Munson. To charge 2?
Mr. Dasch. Not guilty, sir.
Colonel Munson. To the specification of Charge 3?
Mr. Dasch. Not guilty, sir.
Colonel Munson. To the specification of Charge 4?
Mr. Dasch. Not guilty, sir.
Colonel Munson. To Charge 4?
62
Mr. Dasch. Not guilty, sir.
Colonel Munson. You therefore plead
not guilty to all of the charges and specifications and desire that plea of not
guilty to be entered?
Mr. Dasch. That is right, sir.
Colonel Munson. Herbert Haupt.
(Herbert
Haupt stepped forward.)
Colonel Munson. How do you plead to Specification 1 of Charge
1?
Mr. Haupt. Not guilty.
Colonel Munson. To Specification 2 of Charge 1?
Mr. Haupt. Not guilty.
Colonel Munson. To Charge 1?
Mr. Haupt. Not guilty.
Colonel Munson. To the specification of Charge 2?
Mr. Haupt. Not guilty.
Colonel Munson. To Charge 2?
Mr. Haupt. Not guilty.
Colonel Munson. To the specification of Charge 3?
Mr. Haupt. Not guilty.
Colonel Munson. To Charge 3?
Mr. Haupt. Not guilty.
Colonel Munson. To the specification of Charge 4?
Mr. Haupt. Not guilty.
Colonel Munson. Then, you plead not guilty to all of the
charges and specifications and desire that plea of not guilty to be entered on
your behalf?
63
Mr. Haupt. Yes, sir.
Colonel Munson. Henry Harm Heinck.
(Henry
Heinck stepped forward.)
Colonel Munson. How do you plead to Specification 1 of Charge
1?
Mr. Heinck. Not guilty.
Colonel Munson. To specification 2 of Charge 1?
Mr. Heinck. Not guilty.
Colonel Munson. To Charge 1?
Mr. Heinck. Not guilty.
Colonel Munson. To the specification of Charge 2?
Mr. Heinck. Not guilty.
Colonel Munson. To Charge 2?
Mr. Heinck. Not guilty.
Colonel Munson. To the specification of Charge 3?
Mr. Heinck. Not guilty.
Colonel Munson. To Charge 3?
Mr. Heinck. Not guilty.
Colonel Munson. To the specification of Charge 4?
Mr. Heinck. Not guilty.
Colonel Munson. To Charge 4?
Mr. Heinck. Not guilty.
Colonel Munson. Then, you desire a plea of not guilty to be
entered?
Mr. Heinck. Yes, sir.
Colonel Munson. To all the charges and specifications on your
behalf?
Mr. Heinck. Yes, sir.
Colonel Munson. Edward John Kerling.
64
(Edward
John Kerling stepped forward.)
Colonel Munson. How do you plead to Specification 1 of Charge
1?
Mr. Kerling. Not guilty, sir.
Colonel Munson. To Specification 2 of Charge 1?
Mr. Kerling. Not guilty, sir.
Colonel Munson. To Charge 1?
Mr. Kerling. Not guilty, sir.
Colonel Munson. To the specification of Charge 2?
Mr. Kerling. Not guilty, sir.
Colonel Munson. To Charge 2?
Mr. Kerling. Not guilty, sir.
Colonel Munson. To the specification of Charge 3?
Mr. Kerling. Not guilty, sir.
Colonel Munson. To Charge 3?
Mr. Kerling. Not guilty, sir.
Colonel Munson. To the specification of Charge 4?
Mr. Kerling. Not guilty, sir.
Colonel Munson. To Charge 4?
Mr. Kerling. Not guilty.
Colonel Munson. You plead not guilty, therefore, to all of
the charges and specifications and desire that plea entered?
Mr. Kerling. Yes, sir.
Colonel Munson. Hermann Neubauer.
(Herman Neubauer
stepped forward.)
Colonel Munson. How do you plead to Specification 1 of Charge
1?
Mr. Neubauer. Not guilty.
Colonel Munson. To Specification 2 of Charge 1?
65
Mr. Neubauer. Not guilty.
Colonel Munson. To Charge 1?
Mr. Neubauer. Not guilty.
Colonel Munson. To the specification of Charge 2?
Mr. Neubauer. Not guilty.
Colonel Munson. To Charge 2?
Mr. Neubauer. Not guilty.
Colonel Munson. To the specification of Charge 3?
Mr. Neubauer. Not guilty.
Colonel Munson. To Charge 3?
Mr. Neubauer. Not guilty.
Colonel Munson. To the specification of Charge 4?
Mr. Neubauer. Not guilty.
Colonel Munson. To Charge 4?
Mr. Neubauer. Not guilty.
Colonel Munson. You plead, therefore, not guilty to all the
charges and specifications and desire that plea entered; is that correct?
Mr. Neubauer. Yes, sir.
Colonel Munson. Richard Quirin.
(Richard Quirin stepped forward.)
Colonel Munson. How do you plead to Specification 1 of Charge
1?
Mr. Quirin. Not guilty.
Colonel Munson. To Specification 2 of Charge 1?
Mr. Quirin. Not guilty.
Colonel Munson. To Charge 1?
Mr. Quirin. Not guilty.
Colonel Munson. To the specification of Charge 2?
66
Mr. Quirin. Not guilty.
Colonel Munson. To Charge 2?
Mr. Quirin. Not guilty.
Colonel Munson. To the specification of Charge 3?
Mr. Quirin. Not guilty.
Colonel Munson. To Charge 3?
Mr. Quirin. Not guilty.
Colonel Munson. To the specification of Charge 4?
Mr. Quirin. Not guilty.
Colonel Munson. To Charge 4?
Mr. Quirin. Not guilty.
Colonel Munson. You plead, therefore, not guilty to all the
charges and specifications and desire that plea entered on your behalf?
Mr. Quirin. Yes, sir.
Colonel Munson. Werner Thiel.
(Werner Thiel stepped forward.)
Colonel Munson. How do you plead to
Specification 1 of Charge 1?
Mr. Thiel. Not guilty.
Colonel Munson. To Specification 2 of
Charge 1?
Mr. Thiel. Not guilty.
Colonel Munson. To Charge 1?
Mr. Thiel. Not guilty.
Colonel Munson. To the specification of
Charge 2?
Mr. Thiel. Not Guilty.
Colonel Munson. To Charge 2?
Mr. Thiel. Not guilty.
Colonel Munson. To the specification of
Charge 3?
67
Mr. Thiel. Not guilty.
Colonel Munson. To Charge 3?
Mr. Thiel. Not guilty.
Colonel Munson. To the specification of
Charge 4?
Mr. Thiel. Not guilty.
Colonel Munson. To Charge 4?
Mr. Thiel. Not guilty.
Colonel Munson. You plead not guilty to
all the charges and specifications and desire that plea entered on your behalf?
Mr. Thiel. Yes, sir.
OPENING STATEMENT OF THE PROSECUTION
The Attorney General. May it please the Commission: I understand it
to be customary to make a brief opening for the prosecution. I shall therefore do so now, with your
permission.
You have already read the
charges. The prosecution will show that
sometime in April of 1942, and during the months of February and March, but
chiefly in April, the German High Command, through a lieutenant in the German
Army, Walter Kappe, approached these men in order to enlist them in a sabotage
camp. Some of them had been known by
Kappe when Kappe was previously in the
They were trained approximately from
April 10 to April 30 in various ways.
They were trained in the use of explosives, in the use of timing devices
and timing clocks, in
68
secret
handwriting, in personal histories which they could use when they got to the
They received forged registration
certificates--I mean registration under the Army of the
The President. What kind of cards, please?
The Attorney General. Social Security
cards, cards showing that they were entitled to the
benefits
of the Social Security Act of the
After April 30th, the training having
been approximately from April 10th to April 30th, they were given a recess
until approximately the 12th of May.
They were then taken to
69
They were then taken to a place called
Meanwhile, at the camp they had been
divided into two groups. Each group had
a leader. Each group consisted of four
men and therefore these defendants naturally divided themselves up into what I
will call the First Group, of which Dasch was the leader, and which consisted
of Dasch, Burger, Heinck and Quirin.
The Second Group, of which Kerling was
the leader, consisted of Kerling, Neubauer, Haupt and Thiel.
Most of the members of each group had
aliases which they were to use in the
Heinrich Harm Heinck was to use the
alias “Kayner.”
Ernest Peter Burger was to use the
alias “Richard Quintas.”
70
Kerling was to use the alias “Edward
Kelley.”
Hermann Neubauer was to use the alias
“Hermann Nicholas.”
Werner Thiel was to be known as “John
Thomas.”
I repeat that the members of the first
group were George Dasch, the leader, Ernest Peter Burger, Heinrich Harm Heinck,
and Richard Quirin. That was the first group.
The second group were Edward Kerling,
who was the leader of that second group, Hermann Neubauer, Herbert Haupt, and
Werner Thiel.
Part of the course consisted in
studies of maps of certain parts of the
For instance the first group--and you
will remember that that is the group of which Dasch was the leader--were
trained, coached, and directed to do sabotage in the aluminum plants in this
country, and specifically in the aluminum plants of Alcoa, Tennessee, at East
St. Louis, at Messina, New York, and in the Cryolite plant of the Aluminum
Company at Philadelphia.
The first group, of which Dasch was
the leader, were also instructed as their main objects in sabotaging locks in
the Ohio River on a designated area of the river between
The second group, of which Edward
Kerling was the leader,
71
were
instructed to do sabotage, roughly speaking, on the railroads; the Pennsylvania
railroad station at Newark, the Hellsgate Bridge, points which were not, I
think, specified, on the Chesapeake & Ohio Railroad, and at Niagara Falls.
They were then put into a train and
taken from
Group 2 left before Group 1. Group 2 left on a German submarine on the
26th of May. Group 1 left on a submarine on the 28th of May.
Group No. 1 landed on a beach on Long
Island, Group No. 2 landed, a few days later, on a beach in
Before they started, the leaders of the
groups were given large sums of money to be distributed to the groups. Each member of the individual group was given
a money belt containing substantial sums of money which he was to use in this
country for purposes which were designated.
The first group landed, as I said, on
As I do not want to prolong this
introductory statement, I will say that at that point Group No. 1 buried four
cases of explosives, time fuses and various timing devices in the sand. They had intended to send back to the
submarine their naval uniforms which they wore on the submarine and which
72
they
wore on landing, in accordance with the instructions, to be able to show that
they were, if they were caught at that very moment, members of the armed forces
of the German Reich.
They did not have time to do that on
account of the Coast Guard man’s being there, and instead of sending their
uniforms back in a duffle-bag, as it was intended that they should do, the
rubber boat went hastily back to the submarine, and the clothes were buried. They also buried the cases containing the
explosives to which I have referred.
The
Subsequently the eight defendants went
to various parts of the
I might also add that all of these
defendants had lived for some time in the
I shall introduce certain documents
showing the military, naval, and coast guard direction of the territory which
was invaded by these defendants, and I will then show--and I am not going into
details--by confessions obtained from all of these defendants or from some of
these defendants what occurred after they reached this country. I will then bring in and exhibit to you what
was recovered from the boxes. I will
bring in their clothes and show you the actual uniforms that they wore, show
you that they wore German military caps and
73
German
Uniforms.
I think it is unnecessary for me to go
into any further detail with respect to the evidence.
Colonel
Royall. If the Commission please, as I
understand, it is optional whether or not an opening statement should be made
by the defense. The defendants do not
desire to make any opening statement in this case.
The Attorney General. With the Commission's permission I will
introduce certain preliminary matter.
I wish to introduce, first, a
memorandum for the Provost Marshal General, dated
(Letter dated
Major General Ulio to the Provost
Marshal General was marked P-1
and received in evidence.)
(Exhibit P-1 is as follows:)
EXHIBIT P-1.
“
“MEMORANDUM for the Provost Marshal
General, Military
District of Washington
“Subject: Receipt of prisoners.
“1. The Secretary of War directs that
you receive and keep in custody until further orders from the Federal Bureau of
Investigation, Department of Justice, the following named prisoners, to be
tried before
74
a military commission:
“Ernest Peter Burger,
“George John
Dasch,
“Herbert Haupt,
“Heinrich Harm
Heinck,
“Edward John
Kerling,
“Hermann Neubauer,
“Richard Quirin, and
"Werner Thiel.
"2. The Secretary of War further
directs that defense counsel may have access to them at all times prior to
their trial and confer with them without the presence of any other party. The defense counsel, as at present constituted,
are the following officers: Colonel Cassius M. Dowell, Colonel Kenneth Royall,
Major Lauson H. Stone, and Captain William C. Hummell. On oral representation
of either of the major defense counsel that officers other than those named
herein are of defense counsel, they may have similar privileges without further
permission being obtained.
“J.
A. ULIO,
Major
General,
The Adjutant General.
“A
true copy of this original signed in my
presence, this 3rd day of July, 1942.
“P.
G. Munson
Colonel (J.A.G.D.) A.G.D”
I should like to offer Exhibit P-2,
which, with your permission, I will read, as I have no copy of it (reading) :
75
EXHIBIT P-2
"OFFICE OF THE ATTORNEY GENERAL
WASHINGTON, D. C.
“
“MEMORANDUM FOR MR. HOOVER.
“Will you be kind enough to turn over
the custody and control of the following persons to the Secretary of War:
Ernest Peter
Burger
George John Dasch
Herbert Haupt
Heinrich Harm
Heinck
Edward John
Kerling
Herman Neubauer
Werner Thiel
“Francis Biddle
Attorney General”
May I ask the Commission to accept
these exhibits as they are offered.
The President. They will be accepted if there is no
objection.
The Attorney General. I should like to offer in evidence Exhibits
P-3 to P-10, inclusive, which are identical except for the name of each
individual defendant. I will read the
first one (reading):
EXHIBIT P-3.
“
76
“On this date I received control and custody,
from the Federal Bureau of
Investigation, over the following-named
prisoner:
“ERNEST
PETER BURGER
“Albert L. Cox
Brigadier General,
EXHIBIT P-4.
“
“On this date I received control and
custody, from the Federal Bureau of Investigation, over the following-named
prisoner:
“GEORGE
JOHN DASCH
“Albert L. Cox
Brigadier
General,
EXHIBIT P-5.
"
“On this date I received control and
custody, from the Federal Bureau of Investigation, over the following-named
prisoner:
“HERBERT
HAUPT
“Albert L. Cox,
Brigadier
General,
EXHIBIT P-6.
"Washington, D. C.,
"On this date I received control
and custody, from the Federal Bureau of Investigation, over the following-named
prisoner:
77
"HEINRICH
HARM HEINCK
"Albert L. Cox
Brigadier
General,
U. S. Army"
EXHIBIT P-7.
"Washington, D. C.,
"On this date I received control
and custody, from the Federal Bureau of Investigation, over the following-named
prisoner:
“Edward John Kerling
“Albert L. Cox
Brigadier General,
EXHIBIT P-8.
“
“On this date I received control and
custody, from the Federal Bureau of Investigation, over the following-named
prisoner:
“HERMANN
NEUBAUER
“Albert L. Cox
Brigadier General,
EXHIBIT P-9
“
“On this date I received control and
custody, from the Federal Bureau of Investigation, over the following-named
prisoner:
“RICHARD QUIRIN
“Albert L. Cox
Brigadier General,
78
EXHIBIT P-10
“
“On this date I received control and
custody, from the Federal Bureau of Investigation, over the following-named
prisoner:
“WERNER
THIEL
“Albert L. Cox
Brigadier General,
(The
foregoing exhibits, numbered
P-3 to P-10 inclusive were re-
ceived in evidence.)
The President. Will you please show any such exhibits to the
defense counsel?
The Attorney General. Yes, Mr. President; I will.
I now offer in evidence Prosecution
Exhibit No. 11, which is a proclamation, headed Public Proclamation No. 1. This is offered for the purpose of showing
that the Eastern Defense Command embraces the entire
“And, in connection therewith, is
subject to espionage and acts of sabotage, thereby requiring the adoption of
military measures necessary to establish safeguards against such hostile
operations.”
The President. What is the date of it?
The Attorney General. The date of the proclamation is
Colonel Royall. To that the defendants object not only
79
on
the ground of identification and verification, but on the ground of
immateriality. It is our position that
this has no significance in connection with the charges; that the fact that an
area has been proclaimed in the manner in which it was proclaimed here
establishes no fact as to its being a combat area or an area which would differ
from other areas, in connection with these charges.
The Attorney General. It seems to me to be unnecessary to argue
that point, except that such an attack as was envisaged two months before
subsequently took place, and that certain area was declared to be under the control
of the Army, as stated in the proclamation.
It seems to me that counsel’s argument covers matter which has already
been substantially dealt with, and therefore I do not propose to argue it any
further, unless you wish me to.
Colonel Royall. May I suggest a further remark as to the
competency of this exhibit. If this
proclamation is effective for the purpose for which it is offered it follows
that the entire area, which is all the Eastern Seaboard States, covers area
even to and through the mountains; and it is inconceivable to us that a
proclamation of this kind could have the effect of conferring on any military
court or commission additional jurisdiction which it otherwise would have a
right to exert over that wide area.
Moreover, we think that a proclamation
which covers such a vast territory could be the basis for any showing in the
sense that the word might be used in connection with violating military law,
and we think that the proclamation with the accompanying map or plat is
incompetent and should not
80
be
received in evidence by the Commission.
The President. Is there anything further, Mr. Attorney
General?
The Attorney General. I have no further argument on this subject
with respect to counsel’s objection.
The President. If there is no objection on the part of any
member of the Commission, the objection of the defense counsel is not
sustained.
(Public
proclamation No. 1 was
marked
Exhibit p-11 and received
in evidence)
81
The Attorney General. The prosecution offers in evidence Exhibit
P-12. This exhibit is a certified copy of a chart showing the areas comprising
the Eastern sea frontier and the Gulf sea frontier as they existed during the
period of June 12 to June 18, inclusive.
It is certified by the Chief of Staff and attested by the Secretary of
the Navy. It is marked “Confidential,” and I take it that the chart itself is
confidential.
I also offer in connection with this
exhibit a separate paper, which is, however, really a part of the exhibit,
marked as Prosecution Exhibit 12-1/2, which describes by metes and bounds the
area of the territory shown on the map.
I have shown these to counsel for the defense.
The President. I take it that these are in connection with
both the naval and the military defense areas, are the not?
The Attorney General. Yes.
Colonel Royall. The defense desires to object to that upon
grounds similar to those stated in the case of the other paper but not on the
ground of identification or authentication.
The President. I take it on the ground of relevancy?
Colonel Royall. That is right, sir--relevancy and
materiality.
Colonel
Dowell. The defense offers another observation.
I believe that the Attorney General mentioned the southern and eastern
zones, whereas I believe the map shows the entire
The Attorney General. Well, I quoted the words of the proclamation.
Colonel Dowell. He meant especially the southern and eastern.
82
The President. Subject to objection from any member of the
Commission, the objection of the defense is not sustained, and the papers will
be accepted in the record.
(Certified
copy of chart showing
areas comprising Eastern sea
frontier and Gulf sea frontier
as they existed during the
period from June 12 to June 18,
inclusive, and paper describing
territory shown on map were
marked as Exhibits P-12 and
P-12-1/2, respectively.)
Colonel Royall. I should like to say to the Commission that
ordinarily when documents are introduced, particularly if they are voluminous
and we are not familiar with them, we should like to have them read. I think that that is our privilege. It was not our intention, as I so informed
the Attorney General, to have this first proclamation read. However, since the second is so closely
related to it and covers the entire country, and since we are not familiar with
it and, I assume, the Commission in its entirety is not, I believe we would
prefer this to be read.
The President. Will you please have it read at the request
of the defense counsel?
Mr. Cox. Exhibit P-11 reads as follows:
“Headquarters Eastern Defense Command
and First Army,
“
“Public Proclamation No. 1.
“To:
The people within the States of Maine, New Hampshire, Vermont,
Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Delaware, Pennsylvania,
Maryland, Virginia, North Carolina, South Carolina, Georgia, part of the State
of Florida, and the District of Columbia.
83
“Whereas, by virtue of orders issued by
the War Department on December 20, 1941, and March 18, 1942, that portion of
the continental United States east of the following line: The Ohio-Pennsylvania boundary, the West
Virginia-Virginia boundary, the Kentucky-Virginia boundary, the
Tennessee-Virginia boundary, the Tennessee-North Carolina boundary, the
Alabama-Georgia boundary to its junction with Florida thence south along the
Apalachicola River, has been established as the Eastern Defense Command under
my command; and
“Whereas, by
“Whereas, the Secretary of War on April
22, 1942, designated the undersigned as Military Commander to carry out the
duties and responsibilities imposed by said Executive Order for that portion of
the United States embraced in the Eastern Defense Command; and
“Whereas, the Eastern Defense Counsel
embraces fifteen States, part of another State, and the
84
the
“Whereas, the economic life of this
large portion of the population of our country, dwelling within the Eastern
Defense Command, should be distributed as little as may be consistent with
requirements of adequate National Defense and internal security; and
“Whereas, the Eastern Defense Command
embraces the entire Atlantic Coast and a portion of the Gulf Coast of the
United States and its geographical location is particularly subject to attack,
and, in connection therewith, is subject to espionage and acts of sabotage,
thereby requiring the adoption of military measures necessary to establish
safeguards against such hostile operations;
“Now, Therefore, I, Hugh A. Drum,
Lieutenant General, U. S. Army, by virtue of the authority vested in me by the
President of the United States and by the Secretary of War and my powers and
prerogatives as Commanding General of the Eastern Defense Command and First
Army, charged with the defense of the Eastern seaboard, do hereby declare and
proclaim that:
“1.
The present situation requires as a matter of military necessity the
establishment, in the territory embraced in the Eastern Defense Command within
the continental United States, of Military Areas, and for that purpose, I do
hereby prescribe all of the territory in the several States of the
85
United States lying east and northeast
of the westerly boundary line of the Eastern Defense Command, including the
States of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island,
Connecticut, New York, New Jersey, Delaware, Pennsylvania, Maryland, Virginia,
North Carolina, South Carolina, Georgia, part of Florida, and the District of
Columbia, to be a Military Area and to be designated as the Eastern Military
Area, as the same is shown on the map.
“2.
The functional subdivisions of the Eastern Military Area for purposes of
enforcement of restrictions and orders issued from this Headquarters are the
existing Corps Areas, namely, the First Corps Area, with Headquarters at
Boston, Massachusetts; the Second Corps Area, with Headquarters at Governors
Island, New York; the Third Corps Area, with Headquarters at Baltimore, Maryland;
and the Fourth Corps Area, with Headquarters at Atlanta Georgia. The Commanders of said Corps Areas are
charged with responsibility for the enforcement of the restrictions and orders
pertaining to their respective Corps Areas.
“3.
The protection of American commerce and that of the United Nations (sic)
from damage or destruction by enemy attack, and the prevention of enemy action
against our shores, along the Atlantic and Gulf Seaboards, involve the
effective control of artificial lighting along these coasts and for a
reasonable distance in the rear thereof.
For the purpose of such control, the existing restrictions and orders of
the Commanding Generals of the four Corps Areas of
86
the Eastern Military Area are hereby
adopted and declared to be a part of this Proclamation. Corps Area Commanders are designed as the
authorities to promulgate the necessary restrictions and orders for control.
“4. Willful violation of any such
restriction or order by an alien enemy, or repeated careless violations, even
if not willful, are cause for expulsion, internment or prosecution; similar
violations by persons other than alien enemies are cause for expulsion or
prosecution.
“5. Nothing contained herein shall be
construed as limiting or modifying the duty and responsibility of the
Department of Justice under the Proclamations of the President of December 7
and 8, 1941, insofar as the enforcement of rules and regulations for the
conduct and control of alien enemies is concerned, or otherwise.
“6. The Corps Areas in the Eastern
Military Area, each within its respective sphere of activities, and such
federal, state, municipal and local agencies, as the Commanding General,
Eastern Defense Command, with the consent of such agencies, may from time to
time deem advisable specifically to designate, are hereby designated as the
agencies to enforce the provisions of these restrictions and orders and such
restrictions and orders and such restrictions and order as may subsequently be
issued by him; and these agencies, under the coordination of the Commanding
General, Eastern Defense Command, have jurisdiction to conduct the
investigations
87
necessary to their respective
enforcement thereof.
“7. In accordance with representations
made to the Governors of the States within the Eastern Military Area and the
Commissioners of the District of Columbia, it is specifically requested that
state and municipal police, and other officials and civilians within the States
affected by this Proclamation, assist the agencies charged with enforcing restrictions
by reporting to them the names and addresses of all persons believed to have
violated restrictions, and such other information as may be called for by these
agencies.
“8. A copy of this Proclamation shall
be displayed for public inspection at every Selective Service Local Board; at
every Post Office; at every Court House; and at every Town Hall within the
Eastern Military Area. Additional proclamations, announcements, restrictions,
and orders will be issued from this Headquarters as occasion demands. Copies of such additional proclamations,
announcements, restrictions, and orders will be available for inspection at
every Selective Service Local Board; at every Post Office; at every Court
House; and at every Town Hall within the Eastern Military Area. It shall be the duty of every person found
within the Eastern Military Area to familiarize himself with the terms of every
proclamation, announcement, restriction, or order issued by this Headquarters.
“The assistance of public-spirited and
patriotic newspapers, periodicals, radio and other media of public information
within the Eastern Military Area is earnestly
88
solicited and it is confidently
expected that they will publish in full in a prominent position this
Proclamation and every proclamation, announcement, restriction, or order issued
by this Headquarters pursuant to this Proclamation.
“H. A. DRUM,
“
“
Colonel Royall. May I say this: the Commission has ruled on it, and I assume
it could not reconsider it if it desired.
However, I desire to make this additional argument about the
admissibility of that proclamation.
It plainly appears from that
proclamation that nothing is contemplated as to the military administration of
the law in that territory; on the contrary, it clearly and almost positively,
certainly inferentially, appears that the civil authorities are designated to
enforce the various restrictions which are imposed therein.
The President. I do not take it that you ask for
reconsideration? You have simply made a
statement?
Colonel Royall. I did not want to make formal request for
reconsideration.
The Attorney General. I take it, then, that there is nothing for me
to argue.
Colonel Royall. I should like to say this--and this is not
what the Commission has addressed its remarks to: a moment ago the Commission
stated that this was read at the request of the defense. Could we add: “without waiving its
objection?”
The Attorney General. I have no objection to that.
89
Colonel Royall. I think that that is appropriate. I would rather have it clarified.
The President. Yes.
The Attorney General. May I proceed?
The President. Yes.
The Attorney General. I will ask the reporter to mark this document
as Prosecution Exhibit 13 and, since it consists of a number of pages, to
identify each page by a letter.
May
it please the Commission, I offer the prosecution’s exhibits P-13-A to P-13-I,
inclusive. It is all one exhibit, there
being separate papers and that being the reason why they are lettered in that
way.
This is confidential and is so marked
by the Third Naval District.
Accompanying it is a map of the coast of
I have shown this to counsel for the
defense and now hand it to the Commission. I understand you wish to look at it.
Colonel Royall. We object to that on an additional
ground. First, we object as in the other
cases, because we do not think it is material or relevant. But we also object here because
there
is nothing on these papers to indicate that that was the condition at the time
these offenses
are charged to have been committed.
The date on the map shows March 20. In
a hurried reading of it, I see nothing to indicate that that was the condition
later.
We have not sought to raise captious
objections or objections based merely on form.
In the other instance there was a certificate from an officer that the
condition was in effect on
90
a
date, and in such event I would not want to try to be technical in bringing the
officer. But there is no such
certificate here. There is nothing in
those papers to indicate that the condition was in effect, so far as I can see
from an inspection of them.
The Attorney General. Mr. President, if the Commission wishes, I
can, of course, subsequently call Admiral Waesche or his assistant to prove
these documents. I take it, however,
that the ordinary rule of law is that where a document or a condition is in
effect on a certain date and it is objected to on a date, and in such event I
would not want to try to be technical in bringing the officer. But there the ground that it may not have
been in effect at the time involved, it is up to counsel making that objection
to show that the order was not still in effect.
It would be precisely as if an order issued June 1, with no other order
issued thereafter, was objected to on the ground that it may have been thereafter
not in effect. This is an order that is
in effect; and for whatever relevancy they have, I think these papers are
relevant, as I said before, and I think that the Commission should receive
them. Should the President wish me,
however, to call Admiral Waesche or his assistant, who, I think, certified
these papers, I shall be very glad to do so tomorrow. It seems unnecessary; but, of course, that is
a matter for the Commission to decide.
91
Colonel Royall. I do not conceive that that rule is
applicable to a hearing of this character, but it seems to me that even if it
is, it is immaterial. There is nothing
on there to show its effect on March 20th or at any time, showing a date on it
and that it is a true copy.
I do not wish to bring anyone here
unnecessarily, if he will furnish a certificate from the proper officer that
this was in effect during the period of these charges. We raise no question if it is attached to
this, but we do not think the paper should be received until it is properly
vouched or identified in some manner.
The Attorney General. I had assumed the certificate was as to the
authenticity of the document and not as to its legal effect. It seems to me that if these papers are
certified as being certain regulations, with the dates on them, we should
hardly go back to the Navy to have them state to us that they were also in
effect. However, that is a matter for
the discretion of the Commission.
Colonel Royall. Is there a certificate that that map is based
on any order or is there any order attached to it at all? I did not see any.
The President. As I understand, it is marked, “Issued 20th
of March, 1942.” Is there anything in
here referring to this map?
The Attorney General. May I see it?
I think there is, General McCoy.
The President. I think you had both better look at it before
you present it to the Commission.
Colonel Royall. I did not see any.
92
The Attorney General. Will you reserve your ruling on this until we
have had an opportunity to look it over?
The President. Yes.
[Eight charge sheets were marked
for
identification Prosecution
Exhibits
14 through 21, respec-
tively.]
Colonel Munson. Mr. Griffin.
The President. Will you raise your right hand, Mr. Griffin?
You, being present, solemnly swear that
you will not divulge the proceedings taken in this trial to anyone outside the
93
courtroom
until released from your obligation by proper authority or required so to do by
such proper authority?
Mr. Griffin. I do.
Colonel Munson. You swear that the evidence you shall now
give shall be the truth, the whole truth, and nothing but
the
truth, so help you God?
Mr. Griffin. I do.
MATTHIAS R. GRIFFIN,
a
witness for the prosecution, testified as follows:
DIRECT EXAMINATION
Questions by Colonel Munson:
Q What
is your name, residence or office address, and occupation?
The President. Before the witness is questioned, I would
like to call his attention to the fact that this Commission is
authorized
to punish as contempt of court any breach of you oath, just to be sure you are
conscious of it.
A My
name is Matthias R. Griffin. I live at
Q Your
occupation?
A I
am a special agent of the Federal Bureau of Investigation--that is, the New
York Office.
Questions by the Attorney
General:
Q Mr.
Griffin, I hand you Prosecution’s Exhibits 14 up to 21, inclusive. Will you
look at them and tell me what they are (handing documents to the witness)?
A They
are copies of the charges and specifications, a copy of which I served on each
one of the defendants in this case and to which I certified on the day they
were served.
94
Q Your
certificate and oath of service appear at the end of each one of these
exhibits?
A That
is correct.
Q There
are eight of them?
A There
are eight of them.
The Attorney General. I offer these in evidence.
Colonel Royall. No objection.
The President. If there is no objection, they will be
admitted.
[Prosecution’s
Exhibits Nos. 14
through
21, respectively, were
received in evidence.]
The Attorney General. At this time, may it please the Commission, I
understand the practice to be that exhibits offered are not spread on the
record without authority of the Commission.
I request the Commission to have spread on the record as part of the
record each exhibit which I have offered and which you have already admitted.
The President. If there is no objection, that will be done.
(Exhibits Nos. 14 to 21 are as
follows:)
95
(PROSECUTION EXHIBIT NO. 14)
WAR DEPARTMENT
- - -
CHARGE SHEET
Charges
and Specifications in Cases of Ernest Peter
Burger, George John Dasch, Herbert
Haupt, Heinrich
Harm
Heinck, Edward John Kerling, Hermann Neubauer,
Richard
Quirin, and Werner Thiel.
Charge
I: Violation of the Law of War
Specification 1. In that, during the month of June 1942, the
prisoners, Ernest Peter Burger, George John Dasch, Herbert Haupt, Heinrich Harm
Heinck, Edward John Kerling, Hermann Neubauer, Richard Quirin and Werner Thiel,
being enemies of the United States and acting for and on behalf of the German
Reich, a belligerent enemy nation, secretly and covertly passed, in civilian
dress, contrary to the law of war, through the military and naval lines and
defenses of the United States, along the Atlantic Coast, and went behind such
lines and defenses in civilian dress within zones of military operations and
elsewhere, for the purpose of committing acts of sabotage, espionage and other
hostile acts, and, in particular, to destroy certain war industries, war
utilities and war materials within the United States.
Specification 2. In that, during the month of June 1942, the
prisoners, Ernest Peter Burger, George John Dasch, Herbert Haupt, Heinrich Harm
Heinck, Edward John Kerling, Hermann Neubauer, Richard Quirin, and Werner
Thiel, being enemies of the United States and acting for and on behalf of the
German Reich, a belligerent enemy nation, appeared, contrary to the
96
law
of war, behind the military and naval defenses and lines of the United States,
within zones of military operations and elsewhere, for the purpose of
committing or attempting to commit sabotage, espionage, and other hostile acts,
without being in the uniform of the armed forces of the German Reich, and
planned and attempted to destroy and sabotage war industries, war utilities and
war materials within the United States, and assembled together within the
United States explosives, money and other supplies in order to accomplish said
purpose.
Charge
II: Violation of the 81st Article of War
Specification: In that, during the month of June, 1942, the
prisoners, Ernest Peter Burger, George John Dasch, Herbert Haupt, Heinrich Harm
Heinck, Edward John Kerling, Hermann Neubauer, Richard Quirin, and Werner
Thiel, being enemies of the United States and acting for and on behalf of the
German Reich, a belligerent enemy nation, and without being in the uniform of
the armed forces of that nation, relieved or attempted to relieve enemies of
the United States with arms, ammunition, supplies, money and other things, and
knowingly harbored, protected and held correspondence with and gave
intelligence to enemies of the United States by entering the territorial limits
of the United States, in the company of other enemies of the United States,
with explosives, money and other supplies with which they relieved each other
and relieved the German Reich, for the purpose of destroying and sabotaging war
industries, transportation facilities or war materials of the United States,
and by harboring, communicating with, and giving
97
intelligence
to each other and to other enemies of the
Charge
III: Violation of the 82nd Article of War
Specification: In that, during the month of June 1942, the
prisoners, Ernest Peter Burger, George John Dasch, Herbert Haupt, Heinrich Harm
Heinck, Edward John Kerling, Hermann Neubauer, Richard Quirin, and Werner
Thiel, being enemies of the United States and acting for and on behalf of the
German Reich, a belligerent enemy nation, were, in time of war, found lurking
or acting as spies in or about the fortifications, posts and encampments of the
armies of the United States and elsewhere, and secretly and covertly passed
through and behind said lines and defenses and about the fortifications, posts
and encampments of the armies of the United States, in zones of military
operations and elsewhere, disguised in civilian clothes and under false names,
for the purpose of committing sabotage and other hostile acts against the
United States, and for the purpose of communicating intelligence relating to
such sabotage and other hostile acts to each other, to the German Reich, and to
other enemies of the United States, during the course of such activities and
thereafter.
Charge
IV: Conspiracy to Commit All of the Above Acts
Specification:
In that, during the year 1942, the prisoners, Ernest Peter Burger, George John
Dasch, Herbert Haupt, Heinrich Harm Heinck, Edward John Kerling, Hermann
Neubauer, Richard Quirin, and Werner Thiel, being enemies of the United
98
States
and acting for and on behalf of the German Reich, a belligerent enemy nation,
did plot, plan, and conspire with each other, with the German Reich, and with
other enemies of the
P.
GRANVILLE MUNSON (Sgd.)
* * * * *
Before me, the undersigned, authorized
by law to administer oaths in cases of this character, personally appeared
Colonel P. Granville Munson, U. S. Army, this 3rd day of July, 1942, and made
oath that he is a person subject to military law, and that he personally signed
the foregoing charges and specifications, and that he has investigated the
matters set forth in said specifications, and that the same are true, to the
best of his knowledge and belief.
MYRON
C. CRAMER (Sgd.)
The Judge Advocate General.
* * * * *
Personal service of a true copy of the
above charges and specifications was made by me, the undersigned, on the above
named Richard Quirin on this 3rd day of July, 1942.
M.
R. GRIFFIN (Sgd.)
Special Agent F. B. I., N.Y.C.
Subscribed
and sworn to before me at
Rose
K. Boch (Sgd.)
(SEAL) Notary
Public
NOTARY
PUBLIC,
Queens
Co. No. 204
Commission
expires
99
(PROSECUTION EXHIBIT NO. 15)
(Prosecution Exhibit No. 15 is
identical to No. 14 copied into the record above except that it was served on
George John Dasch.)
(PROSECUTION EXHIBIT NO. 16)
(Prosecution Exhibit No. 16 is
identical to No. 14 copied into the record above except that it was served on
Herman Otto Neubauer.)
(PROSECUTION EXHIBIT NO. 17)
(Prosecution Exhibit No. 17 is
identical to No. 14 copied into the record above except that it was served on
Heinrich Harm Heinck.)
(PROSECUTION EXHIBIT NO. 18)
(Prosecution Exhibit No. 18 is identical
to No. 14 copied into the record above except that it was served on Edward John
Kerling.)
(PROSECUTION EXHIBIT NO. 19)
(Prosecution Exhibit No. 19 is
identical to No. 14 copied into the record above except that it was served on
Ernest Peter Burger.)
(PROSECUTION EXHIBIT NO. 20)
(Prosecution Exhibit No. 20 is
identical to No. 14 copied into the record above except that it was served on
Herbert Hans Haupt.)
(PROSECUTION EXHIBIT NO. 21)
(Prosecution Exhibit No. 21 is
identical to No. 14 copied into the record above except that it was served on
Werner Thiel.)
100
The President. Colonel Munson, I will ask you hereafter to
swear the witnesses as to both oaths, if you please.
Colonel Munson. Mr. Cullen. Hold up your right hand. This is
no the oath as the witness, but this is an oath of secrecy that you will now
take.
You solemnly swear that you will not
divulge the proceedings taken in this trial to anyone outside the courtroom
until released from your obligation by proper authority or required so to do by
such proper authority?
Mr. Cullen. I do.
Colonel Munson. You understand that is an oath of secrecy,
for which you can be punished if it is broken.
Now, I give you the oath as a
witness. Do you swear that the evidence
you shall give in the case now on hearing shall be the truth, the whole truth,
and nothing but the truth, so help you God?
Mr. Cullen. Yes, I do.
JOHN C. CULLEN,
a
witness for the prosecution, testified as follows:
Questions
by Colonel Munson:
Q What
is your name, rank, organization, and station?
A John
C. Cullen,
Q Where
are you stationed?
A I
am stationed at Amagansett,
The Attorney General. I ask the stenographer to mark as Exhibit 22
what I am now presenting, with this cap in this container.
(Container
containing cap was
marked
Prosecution’s Exhibit
22.)
101
Questions
by the Attorney General:
Q Mr.
Cullen, you are in the Coast Guard?
A Yes,
sir.
Q Where
were you stationed on
A Amagansett
life boat station.
Q Do
you remember what occurred on that night?
A Yes,
sir.
Q When
did you go on duty?
A Ten
after 12.
Q At
what time of the day? Was it
A A.M.,
sir.
Q What
kind of night was it?
A Foggy
night.
Q Well,
describe that a little more, please.
A Well,
it was very dark and very foggy.
Q How
far could you see?
A Not
more than 15 feet; 20 feet at the most.
Q When
the events that you are going to testify to occurred, how far were you from the
Coast Guard station at Amagansett?
A About
not quite a half a mile, sir.
Q Not
quite half a mile. What was the first thing that you saw that night after you
went on duty at
A I
saw a dark object out in the water. It was about 20 feet away.
Q I
think you had better address your remarks to the Commission, so they can hear
them, and keep your voice up. What kind of object? Will you describe the
object?
102
A It
was just a dark object when I first approached it. Then I walked up a little further and I
flashed my light upon it; quickly put it out again. It did no good. Then I approached a little closer yet, and I
noticed there were three men standing there.
Q Standing
where?
A Out
in the water, sir.
Q How
deep in the water?
A Oh,
about a little over ankle deep; not quite at their knees.
Q And
how far was that from the Coast Guard station?
A That
was not quite a half a mile, sir.
Q What
occurred then?
A I
asked these men who they were. I
hollered out. One of the men walked
toward me --
Q Do
you recognize the man in court who walked towards you?
A I
think so, sir.
Q Will
you stand up and identify him, if you see him in court? Stand up, please. Now,
do you see the man?
A Yes,
sir.
Q Which
is he?
A Right
here (indicating), sir.
Q Go
and point to the man that you have in mind.
It won’t hurt you. Just go and
point at him. Point at him. Which is he?
A Yes,
sir; right here (indicating).
Q Will
you stand up, please?
103
(One
of the accused stood and approached the witness.)
Q Is
that the man that you remember seeing?
A Would
he mind saying a few words?
Q Do
you want to identify him by his voice? Is that what you mean?
A Yes,
sir.
The Attorney General. Do I have the Commission’s permission to
permit the person whom the witness has identified to speak, so that he may be
able to identify him by his voice?
The President. If there is no objection on the part of the
defense.
Colonel Royall. I do not represent him, sir.
Colonel Ristine. No objection.
The Accused. What is the matter?
A Yes,
sir.
Questions
by the Attorney General:
Q What
do you mean by “Yes, sir?”
A That’s
the man.
Q That’s
the man that you saw at that time?
A Yes.
The Attorney General. The record, I think, should show that the
witness identified the defendant Dasch as the man whom he saw on the beach at
that point.
Do you object to that?
Colonel Ristine. No.
The Attorney General. May the record so show that?
Questions by the Attorney General:
Q Tell
us what happened then.
A I
asked him who he was, and he approached me and he
104
said,
“Coast Guard?”
I said, “Yes, sir.” I asked him who he
was.
He said, “We are a couple of fishermen
from
I asked him what was the trouble, and
that’s what he told me. Then I asked him
what he intended to do about it.
He said, “We will stay here until sunrise
and then we will be all right.”
So I told him it was four hours until
then; there was no reason why he should not come up to the station and stay
there.
Q At
that time were the three of them standing together when you were talking to
them?
A No,
sir; just one.
Q And
the other two were near?
A They
were out in the water yet, sir.
Q Could
you see the other two from where you were?
A No;
I didn’t pay much attention to them.
Q So
this conversation was with you and Dasch, without the other two being present?
A Yes,
sir.
Q Continue.
A He
hesitated a moment and he said, “All right.”
We walked about 5 feet, and he stopped
and said, “I am not going with you.”
I asked him why.
He said he did not have any papers of
identification or permit to fish.
Q He
said that?
A Yes,
sir. I told him he had to come along, and I
105
insisted
upon it, and he said no.
Then I went to grab his arm, sir, and
he said, "Now, wait a minute. You
don’t know what this is all about."
I told him no.
He asked me how old I was. I told him.
He asked me if I had a father. I said yes.
And a mother. I said yes.
He said, “Well, I wouldn’t want to have
to kill you.”
In the meantime a man came down from
the sand dunes in back of me whom I did not see until he was right alongside of
me.
Q Was
the man who came down from the sand hills one of the two men who were standing
in the water? Or was he a fourth man?
A He
was a fourth man.
Q Would
you recognize him now?
A No,
sir, I don’t think I would.
Q Very
well. Continue on.
A He
wore a bathing suit and was dragging a canvas bag. He mentioned a few words not in English.
Q What
kind of bag was he dragging? You said
canvas. What kind of canvas bag?
A More
like a sea bag.
Q A sea bag?
A Yes.
It was dark. It wasn’t light like ours.
Q By
“a sea bag” do you mean a duffle bag?
A Yes,
sir; one with large eye-holes in it.
106
Q Very
good.
A This
man I was talking to before grasped his mouth and told him to shut up and get
over with the other man, which he immediately did, and he took my arm and he
said, “Come over here.”
Q Who
took your arm?
A The
first gentleman I met.
Q You
mean Dasch?
A Yes.
Q You
can now use Dasch’s name, having identified him. Dasch took you along?
A Yes.
We went about 5 feet further, and he said, “Forget about this and I will give
you some money and you can have a good time.”
I told him I did no want any
money. He offered me about a hundred
dollars. I told him I did not want
it. He offered me about three hundred
dollars. He said, “Take this.” So I took it.
He told me to count it, and I said,
“No. It’s all right.” I tried to count
it. It was too dark.
I put it in my pocket, and he said,
“Wait a minute.” He took off his hat and
said, “Take a good look at me.” I took a
good look at him.”
He said, “Look in my eyes.” He said that three or four times.
Then he put his hat back on and he
said, “I’ll be meeting you in
I said, “No, sir. I never saw you
before in my life.”
He mentioned his name was J. W.
Davis. He asked me what mine was. I told him Frank Collins.
107
Q That
was not your name?
A No, sir.
Q Continue.
A I
backed up, and he turned around and went back to the other men. As soon as he was out of sight I immediately
ran to the station.
Q When
you say he went back to the two men, do you mean he walked to join the men in
the water or the man behind the sand dunes?
A He
walked to join the men in the water.
Q What
happened to the man in the sand dunes?
A He
came down--I mean he went to the other men that were in the water.
Q So
that both Dasch and the man behind the sand dunes walked to the men who were in
the water?
A Yes,
sir.
Q Had
you up until that time or did you thereafter mention what the two men in the
water were doing?
A No,
sir. I couldn’t see them from where I was standing.
Q Did
you notice any other person or object in the water at any time?
A No,
sir.
Q Did
you hear any noise coming from the water at that time or later?
A Later,
yes, sir.
Q How
much later?
A Not
until after we had come back from the station.
Q Well,
then, proceed. I will come to that when
you come to that. Proceed with what you
did immediately after
108
what
you testified to.
A I
went back to the station. I told the
officer in charge. Immediately we got
arms and went out--
Q Who
was the officer in charge?
A Jenett,
Second Class Boatswain’s Mate. He gave
us guns and ammunition, and we went back to the spot where I first saw
them. There was nobody there.
Three of us waited there for a while,
while the officer in charge went with another man to the station. We stayed there for quite some time before we
heard these powerful motors. We thought
they were coming back in.
Q How
long was the time which had elapsed between the time that you had left Dasch
and the others, walked to the Coast Guard, and returned? How long did that round trip take?
A About
fifteen or twenty minutes.
Q Fifteen
or twenty minutes?
A Yes,
sir.
Q Very
good. Continue.
A We
waited there. After we heard the motors we stayed there for quite some time.
Q Could
you see anything in the sea?
A Just
a long dark object.
Q A
long dark object. Can you describe it a
little better? You say a long object.
How long would you estimate it to be?
A 85
foot, sir, or more.
Q Can
you describe it a little better than that?
A No,
sir. It was too foggy to make out at the time.
Q Was
it moving?
A Yes,
sir.
109
Q Could
you locate where the sound was coming from?
A Coming
from directly out at sea.
Q In
connection with the object that you mentioned? Was the sound connected with the object?
A Yes.
Q Was
it coming from the object?
A Yes,
sir.
Q Did
you smell anything when you were there?
A Yes,
sir.
Q What
did you smell?
A A
distinct odor of oil.
Q With
respect to the object, where was the odor of oil?
A Coming
from the southwest.
Q Could
you see anything on this object?
A No,
sir.
Q Was
it low water or high water at that time?
A It
was low tide, sir.
Q From
the low tide where you were standing, could you see any other things on that
object?
A No,
sir.
Q Very
good. Continue
A We
walked further up the beach for a while and came back again, and we just laid
around there waiting. Then a seaman came
down and told me to report to the Tower, there was a phone call for me.
I went back there and there was a
warrant officer in charge of the station wanted to know what the story was all
about. I told him over the phone.
110
Q Who
was the warrant officer?
A Mr.
Odin.
Q How
do you spell it?
A O-d-i-n,
I believe.
After I told him the story I stayed
next to the Tower for quite some time--at the bottom of it.
An army lieutenant came by. He was looking for some of his troops. So I walked down the beach in the direction
where I was before with him, till I met this officer in charge at that time,
Jenett, and then we proceeded back of the sand dunes toward a light we had seen
there.
Q What
did the light look like that you had seen in the sand dunes? Can you describe it?
A It
was a small light. It looked like the light of a car.
Q On
a car?
A Yes,
sir; because it was moving quite fast.
Q Was
it as large as the light of a car?
A No,
sir; small.
Q You
mean the size of a flashlight?
A Yes,
sir.
Colonel Royall. Object. It is leading.
The Attorney General. I am sorry.
I have been leading a little bit.
I will try not to. It is sometimes a little quicker.
Questions by the Attorney General:
Q What
did you do after that? You went up the
sand dunes and looked around. What did you find? Anything?
A Not
a thing, sir.
111
Q What
time of the morning was this?
A It
must have been about an hour and a half.
Q An
hour and a half after you had first seen these occurrences take please?
A Yes,
sir.
Q What
happened then?
A Well,
we started back to the station and back of the sand dunes, not along the beach,
and we almost got to the station when we heard these motors begin. We immediately ran down to the beach, but
they had just died out. We didn’t know
what direction they were coming from or anything. Mostly everybody was running around there.
I stayed there a while and I met Mr.
Barnes--he’s the skipper of the station--and he told me to come back to the
station with him.
I went back to the station and there I
gave him the money I had received.
Q Did
you count it or did Mr. Barnes count it?
A Yes,
sir.
Q How
much was it?
A Two
hundred sixty dollars.
Q Do
you remember the denominations that you had?
A Yes.
Q What
were they?
A Two
50’s, five 20’s, and six 10’s.
Q Good.
A After
I had given him the money, it was practically daylight then.
So he suggested we go back to the spot
where I had first
112
met
these men. We went back there and I
examined the spot where I first saw them.
There I found a package of cigarettes, mostly buried in the sand. I gave those to the skipper, and I stood
around there quite some time, talking to the rest of the seamen that were
there, while the skipper went on in back of the sand dunes.
Then I left there and went back to the
station for quite some time later.
Q To
whom did you give those cigarettes?
A Mr.
Barnes.
Q All
right.
A I
went back to the station and stayed there for quite some time, until two
lieutenants came in from the Coast Guard, and they asked me to tell them the
story.
I was in the office describing it all
to them. Mr. Barnes came in and told us
to go in the boat room with him. We went
in the boat room, and there was this equipment they had dug up.
Colonel Royall. We object to that. Whether they had dug up
equipment or not is hearsay.
The Attorney General. I agree that the statement that that was dug
up be stricken from the record, if the Commission wishes it stricken from the
record.
The President. Well, I would like to state that I would like
a little discussion about this. I have
to pass on the admissibility of evidence, and I take it, from the President’s
proclamation, that there is an undue freedom for both sides in the term “probative
value for a reasonable man.” So I want
to make it perfectly plain that the rulings will be to give
113
full
and free presentation of evidence that would fit into that statement.
I just want to be informed. I did not catch the passage between the two
counsel. I would like to have a
statement of it.
The Attorney General. The witness stated that he was in the Coast
Guard when certain boxes were brought back which had been dug up. The objection was that, since he did not see
them dug up, he cannot testify with respect to their being dug up. We shall later show that they were dug up and
put the witnesses on. I said I had no
objection to its being stricken out.
The President. Well, we will accept the objection, then, of
the defense counsel.
114
Colonel Royall. I would like to say that it is going to be
very difficult for me to fit my objections into a more liberal procedure,
because it is difficult to know just where the line is drawn.
The President. I simply stated that as a matter of
information; and we will accept and give considerations to any objections you
care to make.
Colonel Royall. I do not think you are going to have very
many; but when it is a pure matter of hearsay it should be objected to.
The President. I just wanted to bring that out. That is the reason I made the point that I
would like to have a perfectly clear understanding and a full and free hearing.
Questions
by the Attorney General:
Q You
may continue. Your last testimony was
with respect to your being in the Coast Guard station. I want you to testify just what you saw. You were then in the Coast Guard station?
A Yes,
sir.
Q What
was brought into the Coast Guard station?
A Four
boxes.
Q What
kind of boxes?
A Wooden
boxes.
Q Had
they been opened?
A Just
one.
Q What
had been opened? Did you see the
contents of the box that had been opened?
A Yes,
sir.
Q What
were they, in a general way?
115
A Fountain
pen and pencil sets.
Q Do
you remember anything else?
A And
glass capsules, or tubes.
Q Anything
else?
A Metal
disks about the size of a .45 shell.
Q Will
you address yourself to the Commission? What was then done with the other
boxes, in your presence?
A They
were not opened at all in my presence.
Q Did
you see anything else? Did you see
anything else that was brought in?
A Yes,
sir; a canvas bag, which they turned upside down and dumped out the clothes
that were in it.
Q Were
there any other clothes or any other things brought in?
A There
were uniforms, I noticed, and civilian coats.
Most of this stuff was very wet and it was hard to distinguish what it
was.
Q Going
back to your statement that the defendant Dasch took his hat off, I think you
said, and asked you to look at him: Did you notice what kind of hat he had on?
A A
Fedora hat.
Q He
had an ordinary Fedora hat on?
A Yes,
sir.
Q What
occurred then? What did you do then,
after you were in the Coast Guard station and saw the boxes brought in? What was the next thing that happened?
A I
went into the kitchen and had breakfast and went upstairs to bed.
Q You
spoke of seeing some uniforms and clothing in the Coast Guard station. Do
you
remember any particular one,
116
or
can you recollect what they were?
A There
was an over-sea hat.
Q I
show you Prosecution’s Exhibit which has been marked “P-22,” and ask you if
this is the hat which you saw in the Coast Guard station that you are referring
to. Will you look at it (handing hat to the witness)?
A Yes,
sir; that is the hat.
The Attorney General. I offer it in evidence. And may I ask the Commission whether it is
appropriate for me, when I introduce these exhibits, to point out for the
benefit of the Commission their significance and their markings?
The President. If there is no objection on the part of the
defense.
The Attorney General. Do you have any objection to that?
Colonel Royall. Provided it is purely descriptive.
The Attorney General. I should like the Commission to look at this
hat, which is P-22 and which bears the Swastika--but perhaps I should not
testify about it. It bears certain
insignia.
The President. If there is no objection, it will be
accepted.
(P-22 was received in evidence.)
The Attorney General. You may cross examine.
CROSS EXAMINATION
Questions
by Colonel Royall.
Q You
were not armed?
A No,
sir.
Q There
were four or five men there that you saw, were there?
A Four
men, sir.
117
Q You
did not see anyone else besides those four?
A No,
sir.
Q There
was no other member of the Coast Guard in your vicinity?
A There
was a tower.
Q How
far away?
A A
hundred and fifty yards.
Q Was
that visible?
A Not
in the fog, sir.
Q No
one was in your vicinity, no member of the Coast Guard?
A No,
sir.
Q No
violence was offered to be done to you; no one attempted to injure you in any
way?
A No,
sir.
Colonel Royall. That is all.
Questions by Colonel Dowell.
Q You
spoke of seeing a dark object in the water as the first thing you saw?
A Yes,
sir.
Q Did
you determine what that object was? If
so, what was it?
A Not
at that minute.
Q Did
you determine later what it was?
A Yes,
sir.
Q What
was it?
A Excuse
me, sir. Do you mean the object I saw after-
118
wards
out there?
Q The
dark object you saw at first.
A When
I first approached this man?
Q The
first thing you saw. You stated there
was a dark object out in the water.
A Yes,
sir.
Q What
was that object?
A That
was this man here (indicating).
Q Nothing
else?
A No,
sir.
Colonel Dowell. That is all.
The President. Are you through with the cross-examination?
Colonel Dowell. I think Colonel Ristine had something he
wanted to ask at this time.
Colonel Ristine. If I may.
I thought probably the procedure would be to permit counsel for the
seven men to cross-examine on these questions.
The President. You may cross-examine if you wish.
CROSS EXAMINATION ON BEHALF OF THE
DEFENDANT DASCH
Questions by Colonel Ristine.
Q I
wish you would tell us just what you recall, now, about the incident wherein
you say Dasch came up there and took his cap off and asked you to look at
him. Will you tell us in your own way
about that incident?
A After
he spoke to me there he took off his hat and said, “Take a good look at me.” And he said, “Look in my eyes.” He said that three or four times. He said, “Would you ever
119
recognize
me again if you saw me?” I said, “No,
sir; I never saw you before in my life.”
And that is all.
Q Did
he suggest that you might see him later on somewhere?
A Yes,
sir. He said, “You may see me again in
Q Was
any other place mentioned?
A No,
sir; it was just
Q Was
a flashlight used so that you could get a good view of him there?
A No,
sir.
Q It
was at his request that you took a good look at him?
A Yes,
sir.
Q And
that good look, I take it, aided you in identifying him here, did it not?
A Yes,
sir.
Q The
other boy that came up, or the other man who came up, came up very close to you
before you realized he was approaching?
A Yes,
sir.
Q How
close did he come to you?
A Within
two or three feet, I would say.
Q Did
you look at him?
A Yes,
sir.
Q But
you think you could not pick him out in the court room here?
A No,
sir.
Q By
the request of Dasch to you to look at him
120
you
were able to identify him, or at least that assisted you in identifying him?
A Yes,
sir.
Colonel Ristine. I think that is all.
REDIRECT EXAMINATION
Questions by the Attorney General.
Q You
stated that you are two objects. First,
you spoke of one object, and then of another object. When you first said you saw an object on the
beach you meant that you saw an object which later turned out to be the two
men?
A Yes,
sir.
Q Then
the other man came over to Dasch and when Dasch stopped him from talking, what
language did they use in conversing, if you know?
A The
man that approached me from the rear spoke in a foreign language, and Dasch
didn’t use a foreign language.
Q Do
you know what the foreign language was in which he spoke?
A No,
sir.
Q You
said you had not been threatened with violence.
I think that was your answer to the question of counsel for the
defendants?
A That
is right.
Q You
also said, I think, that Dasch had made certain suggestions to you as to what
might happen to you if you did not go away.
What were those suggestions that he made to you?
A He
said he would not want to have to kill me.
Q But
that you did not take it was violence?
A No,
sir.
121
The Attorney General. That is all.
The President. Are there any further questions by the
defense?
Colonel Royall. No, sir.
The President. Are there any questions from the members of
the Commission? (No response) There seem
to be none.
Colonel Munson (addressing the
witness). Keep in mind your oath as to
secrecy.
(The witness left the
stand.)
WARREN BARNES, CHIEF
BOATSWAIN’S
Colonel Munson. Two oaths will be administered to you. The first oath is one of secrecy, and the
other is the oat as a witness. Hold up
your right hand.
You solemnly swear that you will not
divulge the proceedings taken in this trial to anyone outside the court room
until released from your obligation by proper adroitly or as required so to do
by such proper authority?
The Witness. I do.
Colonel Munson. It is understood, of course, that violation
of that oath would be subject to severe punishment?
The Witness. Yes, sir.
Colonel Munson. Now, the oath as a witness.
You solemnly swear that the evidence
you shall give now in hearing shall be the truth, the whole truth, and nothing
but the truth, so held you God?
The Witness. I do.
122
DIRECT EXAMINATION
Question by Colonel Munson.
Q Speak
loudly, so that the members of the Commission can hear you, and also those on
the other side. State your name, rank,
organization, and station.
A Warren
Barnes, Chief Boatswain’s Mate, U.S. Coast Guard, in charge of Amagansett Light
House Station.
Questions by the Attorney
General.
Q Do
you remember an event that occurred after
A At
Q Where
were you?
A At
my home.
Q What
did you do as a result of the call?
A I
took my hat and told my commanding officer, who was spending the evening,
himself and wife, that I was told to report back to the station immediately.
Q You
went to the station, did you?
A He
said, “Just wait a minute, and I will find out what it is about.” He called the station, and they told him
about what had happened and requested that I be notified immediately. He got a gun and gave it to me, and I left
immediately and reported to my station at approximately
Q Who
was at the station?
A Montgomery,
Dowling —
Q Was
Cullen there?
A No,
sir.
Q When
did he come in?
123
A I
met him over on the beach there.
Q When
did you get to the beach?
A I
left approximately 1:15.
Q He
was on the beach?
A Yes,
sir.
Q As
a result of what you said to him did he take you to any particular place on the
beach?
A I
didn’t see him for some few minutes after that.
A message was left with me to meet Jenett, boatswain’s mate, over on the
beach, and when I got there, for some reason or another he was not there; he
was farther along the beach investigating something. So I waited a few moments and asked the boys
what they had seen in the vicinity and they told me about a light in the
cottage, and I thought I would go up the beach to find Jenett, which I
did. At that time I stood there talking
a minute or two, and they were getting something to eat, and Dowling stood
there, and a very noticeable odor of fuel oil was in the air.
Q Coming
from which direction?
A In
the South.
Q Was
it still foggy?
A Yes
sir. The visibility was cut down so that
you could not see over three or four hundred feet.
Q Did
you see anyone?
A As
I was standing there I saw the outline of this boat there. It was about 150 feet back of the false pier,
or a couple of hundred feet from where we were standing.
Q From
what you saw could you tell what kind of boat it was?
A I
could not make it out very distinctly, other than
124
it
was a boat.
Q How
far was the water washing?
A I
would say, about 3 feet. The stern was
cut off very short, and I could see some structure that appeared to me—I
couldn’t make it out distinctly on account of the fog.
Q Did
you have any glasses?
A No,
sir. It appeared to me to be like the
pilot house on one of these old rum boats they used to have in bootlegging
days.
Q Did
you hear any noises coming from that direction?
A I
heard the motor stop. It chugged along,
and all at once I thought she was ashore, and it was then they threw the motors
full speed ahead, or raced the motors.
So I told Jenett to wait, that I was going back to the station to notify
Mr. Odin, and it was understood that as soon as they got anything definite they
would give the information to me.
125
So I started back over to the station,
and on the way up the beach, this boat proceeded along the beach--parallel to
the beach--and she went, practically, faster than I did, and when I got up to
the station, she was right up at the end of the road.
So I went up to the station and called
Mr. Odin and told him what I had found up to that point. Then I called the Navy Department and told
them they had better watch out there and get their men out.
Then I called the man in the tower and
asked him what had become of the boat, and he said the boat had proceeded east.
So I asked him--I said, “What way are
you facing? Are you facing the ocean?”
He said, “Yes.”
I said, “Which hand is it on?”
He said, “On my left hand. She is going east.”
So I returned back to the beach, and
in the meantime Chief Boatswain Chilar spoke up, and he had Seaman Brocks with
him.
So we went back to the beach, and we
sat around talking, and we spread the men out, because the men began to come in
then. So we began to spread out and make
plans to watch the beach closer, to catch anybody that would land or anybody
that would come up on the hill, so we could locate him.
In the meantime, about that time,
Cullen had come up.
Q Before
you proceed further, could you see any objects or figures on this boat that was
moving east?
A No,
sir, we could not.
Q Proceed
with your story. You said Cullen had
come up.
126
A Cullen
had come up, and he told me--he offered to give me this money. I told him to take it--to hold onto it a
little later till we got into the station.
He told me what he had observed. It was dark.
We had no light, anyway, and we was trying to pick up these marks.
Q What
do you mean when you say “these marks”?
A He
said these men that he had met were dragging this bag, and that is what we were
trying to see if we could locate.
Q Did
you locate the marks?
A No,
sir, not for quite a bit.
Q What
did you locate?
A Then,
as I say, the men from the Army and the Coast Guard had given order out to
proceed up the beach. They came in up
the beach, and, of course, as they came in that stretch up the beach, we could
stand up there and watch.
In the meantime, there were two dories
about a mile up the beach, called Yamioo [?]
In the meantime--this was about
quarter past four--we again heard this boat or heard a boat start her motors
up, and they ran for about three minutes, and it appeared to me she went in a
southerly direction, till I heard the motors no more.
Q Could
you tell from the noise whether it was the same boat you heard before?
A That
I couldn’t say. It sounded--I just heard
it for a short interval, and she proceeded south, and all at once, why, the
sound was drowned out; I didn’t hear any more of it.
So I asked the boy that had come back
from patrol if he
127
had
seen Fullington, whom I had sent to the Army post, and he said yes; he had seen
this boat going east, and they could see outlines of it going east--proceeding--and
as the men came from other stations or along the beach, they also stated they
had seen her going east.
Then I went back and reported to the
station again, and Cullen gave me the money, and I gave him a receipt for
it. There were two $50 bills, five
twenties, and six tens.
Then I came back to the beach, and, of
course, it began to get daylight.
Q That
was American money?
A American
money.
As it got daylight, we spread out
around the beach and tried but we couldn’t seem to pick up any marks on the
beach. Finally Seaman Brooks hollered to
Chilar, and he came up saying, “I think I have located something.”
We went up there, and we could see
where something had been dragged. You
could only see here and there. It looked
like a bag and rope hidden by the sand.
Q That
ended at a certain spot?
A As
we walked along, on each side of this bag, or whatever it was that appeared to
be dragging--when I walked along ahead
of them, probably I was twenty feet ahead, I looked over in this hill, and I
saw a place that had been just freshly dug out.
Q What
did you do?
A I
called to the men to come over, and they came over, and Chilar sounded out, and
we struck these cases. There were four
cases.
128
Q Then
you dug?
A Yes,
we dug with our hands and dug them out.
Q How
deep were they buried?
A I
would say about six inches.
Q What
were they that you found under six inches of sand?
A There
were four cases, two at the bottom and two on top.
Q Cases
made of what? Were they wrapped in paper?
A Wrapped
in paper and tarpaulin?
Q I
show you Exhibit P-23. Is that one of
the boxes?
A That
is one of them.
(Box was
marked as Exhibit
P-23 for identification)
Q What
did you do with these four wooden boxes?
A I
told them--I ordered Seaman Brooks to go back and get the truck, and I asked
Chilar to come with me and walk around with me to see if we could find anything
else or signs of marks.
We walked in a northeasterly
direction, probably 150 feet, and there was another place you could readily see
had been dug, and there I found a bag of clothing.
Q What
bag of clothing?
A Well,
these here.
Q I
show you Prosecution Exhibit 24, which I will identify as a duffel bag, and ask
you if that is that bag you found buried under the sand.
A That
is the bag, yes, sir.
(Bag was
marked as Exhibit
P-24,
for identification.)
129
Q Did
you ever find anything else there at that sport or at the first spot where you
dug?
A At
this spot, just a few feet away from that, I called Chilar. He came over, and there was some
clothing. There was a cravenette coat.
Q A
coat?
A A
coat, yes, sir.
Q Was
that buried?
A No,
sir, that was on top.
Q I
show you a coat marked for identification as P-25 and ask you whether that was
the coat.
A Yes,
sir, that was the coat.
(Coat
was marked as Exhibit
P-25,
for identification.)
Q Did
you find anything else?
A And
there was some bathing trunks there.
Q I
show you Exhibit marked P-26 for identification, a pair of bathing trunks, and
ask you if they were bathing trunks.
A Yes,
sir, with a light belt, yes, sir.
(Bathing
trunks marked as
Exhibit
P-26, for identification.)
Q Did
you find anything else?
A There
was one shoe--white shoe--sneaker.
Q I
show you Exhibit P-27. Is this the
canvas sneaker you refer to?
A Yes.
(Canvas
shoe was marked
as
Exhibit P-27, for identification.)
Q Was
this buried or lying on the sand?
A No,
that was lying on the sand.
130
Q Did
you find anything else on the sand?
A No,
sir. In the hold where the duffel bag
was buried there were two trench shovels.
Q Were
they in the duffel bag?
A No,
sir.
Q But
they were in the same hole?
A They
were in the same hole.
Q I
show you Exhibits P-28 and P-29, they being two shovels, and ask if you can
identify them.
A Yes,
sir, those are the shovels.
(Two
shovels were marked as Exhibits
P-28
and P-29, for identification.)
Q Did
you find anything else in the hole?
A The
bag; that was all.
Q The
duffel bag that has already been marked?
A Yes,
sir.
Q Did
you find anything else on the beach?
A No,
sir--there were some cigarettes, yes, sir.
Q What
did you do, by the way, with the cigarettes?
A They
were taken in. I turned them over to our
Intelligence--Coast Guard Intelligence.
Q Who
was that?
A Lieutenant
Erschel.
Q I
show you Exhibit P-30, which consists of cigarettes in a broken package and ask
you whether they are the cigarettes that you turned over to Lieutenant Erschel.
A Yes,
sir, they were turned over.
(Packaging
containing cigarettes was
marked
as Exhibit P-30, for identification.)
131
Q You have described and identified a
number of objects which you found there, buried under or lying on the surface
of the sand. What did you do with those
objects?
A As
soon as the truck came back, we loaded them onto the truck and came back to the
station.
Q You
brought them back to the station?
A The
Coast Guard Station, yes, sir.
Q What
did you do with the boxes when you got them back to the station?
A We
opened one box.
Q You
opened one box at the scene?
A When
we took it out.
Q Was
the box that you opened the box you have already identified?
Q Yes,
sir, a box of that type and character.
When we took the lid off, it had the hermetically sealed tin inside.
(Tin
container was marked as
Exhibit
P-31, for identification.)
By the Attorney General:
Q Is
this the tin you referred to as having been taken out of the wooden box?
A Yes,
sir—we didn’t take it out of the box.
Q When
you opened the box, you found the tin inside it?
A We
found the tin inside the box.
Q Did
you take any of the contents of the tin out at that time?
A No,
sir, we didn’t remove from the package at all.
Q I
understand you found back there an unopened box and took the box --
A (Interposing)
With the lid on.
132
Q (Continuing)
-- back to the Coast Guard Station?
A Yes.
Q What
did you do then?
A
I went into the station and had Mr. Odin call and report to the station
immediately, and they informed me that Lieutenant Erschel was there, and I went
into the office, and they were taking
I said, “We have something here we
want you to take a look at right away.”
So, then he came into the boat room,
and I ordered the truck drove in, and we placed a guard to keep the other men
out of that section, and we unloaded the boxes and the bag, and they were
brought into the station and we put them on the floor.
Q Proceed.
A Then
they opened up this tin.
Q You
opened the tin?
A That
is, the officers opened it up?
Q And
took the contents out?
A Yes,
sir.
Q What
were the contents? You need not describe
them minutely, because we shall do that by another witness. Just state what it contained, in a general
way.
A Well,
it had some pencils in there--I mean fountain pens and pencils. They opened up one package and there had what
they called pencils or little glass containers and some kind of powder.
Q Will
you address yourself to the Commission?
It will be easier, then, for them to hear?
133
A Yes, sir.
Q What
else did you find?
A That
is about all I saw.
Q Did
you open the duffel bag at that time?
A No,
sir. I was real busy, because there was
phoning all the time, and I had to go back and answer the telephone.
Q Was
the duffel bag emptied in your presence?
A It
was dumped on the floor?
Q When
you came back, the contents had been dumped on the floor?
A Yes.
Q Did
you look at the contents of the duffel bag?
A I
saw parts of it, yes, sir.
(A
coat was marked as Exhibit
P-32,
for identification.)
By the Attorney General:
Q I
show you exhibit P-32, already marked for identification, a coat, and ask you
whether you recognize this as what you saw.
A It
is the same material as the coat I saw, and it had a button on it with an
anchor.
Q I
show you this coat and ask you to examine it carefully and state whether that
is the coat.
A Yes,
sir, that is the type of coat.
Q It
is the coat or the type of coat?
A It
is similar. It was wet; in fact, all
those materials were wet.
Q Do
you remember how many coats there were that had been dumped on the floor?
134
A No,
sir, I don’t.
Q Do
you remember what other articles of clothing had been taken out of the duffel
bag when you saw them?
A There
were shoes.
(A
pair of shoes was marked as Exhibit P-33, for identification.)
By the Attorney General:
Q I
show you a pair of shoes, marked as Exhibit P-33 for identification, and ask
you whether those are the shoes or the type of shoes that you saw that had been
taken out of the duffel bag.
A Yes,
sir.
Q Do
you remember how many pairs of shoes, how many coats, and so on, there
were? Were there more than one?
A That
is the one I distinctly remember.
Q Do
you remember how many coats there were?
A No,
sir.
Q Were
other coats with that?
A There
was a bunch of coats there very similar; but as far as the number, I couldn’t
say.
Q A
bunch of what?
A Material
of that kind was there, but I didn’t examine them myself.
Q I
understand you have testified to seeing a coat and a pair of shoes?
A Yes.
Q Did
you see any other clothes there?
A Yes.
Q What?
A Clothes
like there was there.
135
Q What
clothes?
A For
similar clothes.
Q What
was it for?
A Uniform
cloth.
(A
pair of pants was marked as
Exhibit
P-34, for identification.)
By the Attorney General:
Q I
show you Exhibit P-34, admitted by the defense to be a pair of pants, and ask
you to identify that.
A That
was what we saw in the bag, yes, sir.
That type of clothing, yes, sir.
Q Do
you remember how many there were?
A No,
sir, I don’t.
Q What
did you do after that?
A Then
everything was--Lieutenant Erschel --
Q (Interposing) They were turned over to Lieutenant Erschel?
A Yes,
sir.
Q He
was in the Coast Guard Intelligence?
A Yes,
sir.
Q I
show you prosecution’s Exhibit 22, consisting of a cap. Do you remember seeing this?
A Yes,
sir.
Q Where
did you see it? In the Coast Guard?
A Yes,
sir.
Q That
was brought in with the other material?
A Brought
in and taken out.
136
Colonel Royall. What are all these little tags with writing
on them?
The Attorney General. They are just the F.B.I. markings.
May I explain to the Commission that
these tags are simply for identification of the articles by the F.B.I. under
their regulations. They just show how
the F.B.I. got them and are not part of the evidence in any sense. One of them is placed the number of the
exhibit.
Colonel Royall. I did not know whether it contained any
narrative evidence that should not be produced here.
The Attorney General. No; the only thing in evidence is the object
itself and not any of the writing.
By the Attorney General:
Q Mr.
Barnes, what were your orders with respect to your patrol duty along that
coast?
Colonel Royall. Objection.
What his orders were, we think, is not material.
The Attorney General. May I change the form of the question?
By the Attorney General:
Q Under
the orders that were given you, what duties did you perform along the portion
of the coast that you guarded?
Colonel Royall. Objection.
We do not think that is material.
What duties he performed? I do
not see how that could possibly throw any light on these charges. He has told what he did. He has identified these objections without
any objection on our part.
The Attorney General. This, of course, does not go to
137
the
proof of the acts that took place; this goes to the proof of the kind of
military control over that area, and, it seems to me, it is very pertinent to
show that.
We have introduced a general map
showing the territory covered and the orders given; now we propose to show
precisely what those men as members of the Coast Guard did. That will give you the whole military picture
at that particular point, which seems to be relevant.
Colonel Royall. May I inquire of the Attorney General, with
the approval of the Commission, if this relates to the proclamation which has
been put into evidence here but not retained?
The Attorney General. It relates to the proclamation in a
sense. I do not think it is the
proclamation; it is the document covering the Coast Guard. It relates specifically to the duties of
Coast Guard officers at that point.
138
Colonel Royall. The evidence relating to the Coast Guard has
been withdrawn pending further identification; therefore, I do not think this
examination is appropriate at this time.
The Attorney General. I can put in my evidence in any order I
wish. Simply because the order has not
yet been introduced does not mean that I cannot yet show what the men actually
did in that zone—in the Coast Guard zone.
Therefore, my question is directed to that.
Colonel Royall. We submit this, sir: that what a particular
person did certainly could not change the character of the zone. It would require some sort of order, even if
that could not have that effect. It
would seem to me that what he did might be corroborative to show that the order
was being carried out; but until the order is introduced in evidence, there is
no basis for this type of examination.
The President. Do I understand from the defense counsel that
his objection is based on the fact that what he considered not properly
presented before has a bearing on the case?
Colonel Royall. Yes, sir.
Our thought is that if the order when introduced is material and is
admitted by the Commission, it is conceivable that it would be permissible to
show that the order was carried out.
The President. What objection do you see in the order of
presentation?
Colonel Royall. There is no objection, sir, if we can assume
it will be supplied; but I do not see how we can assume that when it has
temporarily been withdrawn and there has been no identification. The paper that presented did not contain any
order at all; it merely contained a map, as far as
139
the
Coast Guard is concerned.
The President. You would admit, then, if that series of
orders and maps, which you took exception to was accepted by the Commission
that this was relevant or might be relevant?
Colonel Royall. Sir, I would think then, in frankness to the
Commission, that if the Commission permitted the Coast Guard order and the
other papers that were offered, having been properly identified, to be
admitted; it would seem logical that this could be offered to show that the
orders were carried out. However, we do
not think the others are competent.
The President. You do not think what?
Colonel Royall. We do not think the Coast Guard orders are
competent.
The President. I understand.
That is, you question the orders themselves or their authenticity?
Colonel Royall. We object on two grounds. We do not think they are relevant to show a
smaller zone. We also objected on the
ground of authenticity. The latter
objection, as I understand it, is what induced the Attorney General to withdraw
them pending further identification.
They are no now before the Commission in any form.
The President. When could you probably present them?
The Attorney General. I think tomorrow, Mr. President, but may I
say this: It seems to me that the two matters have no relation. Assume that I had put this witness on before
making any reference to those papers and had said to him, after showing that
this occurrence took place on the shore that he was going to protect, “What
were your orders and what did you do to carry them out?”
140
How conceivably could that be
objectionable? I am showing the nature
of his duties and the way in which the coast was actually guarded and the
orders to this man as to how to guard it.
That has nothing to do with the proclamation, and it seems to me,
therefore, that it is relevant to admit it at this time.
Colonel Royall. It is inconceivable to me that what a
particular Coast Guardsman did can create a crime, and that is about the effect
of the argument of the Attorney General.
This witness certainly cannot testify what his orders were; the order
themselves would be the evidence of that.
He could not interpret them. If
he could give them word for word, he might help us; I doubt whether that would
be competent.
But to change what would otherwise be
either no crime or a civil crime into a military crime merely by proving what
one or a half dozen Coast Guardsmen did or soldiers did would seem to me was
much beyond reason; that the evidence would clearly be incompetent. We are dealing here with a serious matter, as
to whether there was a crime. Whether one
particular Coast Guardsman or a group controlled the beach, or whatever they
intended to show, certainly is not the way to prove that it is a military zone
or a defense area, or whatever they are seeking to prove.
The Attorney General. I am not only proving that it is a military
zone on paper but I am proving what was being done in that zone, as part of the
picture of what went on, in considering the materiality of the entire proof as
to the nature and effect of declaring this particular spot a military zone, and
it seems to me to be very relevant to show what was done there, just
141
as
if there had been an encampment of soldiers there to protect the coast. We would show that. It think it is relevant.
The President. Is there anything further, Colonel Royall?
Colonel Royall. No, sir, I have stated it as strongly as I
can.
The President. All right.
Subject to objection by any member of the Commission, your objection is
not sustained.
The question may be asked.
It is now
The Attorney General. There will be cross-examination, which will
probably take some time.
The President. I think, then, that if there is no objection,
we will declare the Commission adjourned until
The Attorney General. Before adjourning, Mr. President, may I ask
you to direct that the exhibits which have been identified--and some of them
have been put in evidence--I am now speaking of the physical exhibits--be
returned to the FBI for keeping until tomorrow?
They have all the exhibits, and I prefer not to leave them in the hands
of the reporter.
Colonel Royall. I was going to say that to facilitate matters
we do not intend to object to the introduction of any of those. If it would facilitate matters for you to
introduce them now, it would be all right.
The President. That will be done if you wish.
The Commission is adjourned until
142
morning.
(At
4:40 o’clock p.m., an adjournment was taken up until Thursday, July 9, 1942, at
10 o’clock a.m.)