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Cover
Page
STENOGRAPIC
TRANSCRIPT OF PROCEEDINGS
Before
the
MILITARY
COMMISSION TO TRY PERSONS CHARGED WITH
OFFENSES
AGAINST THE LAW OF WAR AND THE
ARTICLES
OF WAR
________________
Session
XI
Pages 1816 to 1926
1816
CONTENTS
|
Name of Witness |
Direct |
Cross |
Redirect |
Recross |
|
Spencer J. Drayton |
|
1848 |
|
|
|
Earl Hirsh |
|
1850 |
|
|
|
Duane
L. Trayner |
|
1853
1880 |
1876 |
1878 1884 |
MOTIONS
FOR VERDICTS OF NOT GUILTY
By Colonel Royall 1887
REPLY
TO MOTIONS FOR VERDICTS OF NOT GUILTY
By The Judge Advocate General 1900
MOTION
OF DASCH FOR VERDICT OF NOT GUILTY
By Colonel Ristine 1910
REPLY
TO MOTION OF DASCH FOR VERDICT OF NOT GUILTY
By The Judge Advocate General 1921
--ooOoo--
1817
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 order
dated
PRESENT: Members of
the Military Commission are as follows:
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.
As Trial Judge Advocates:
Honorable
Francis Biddle,
Attorney General of
the
Major
General Myron Cramer,
The Judge Advocate General,
Colonel
F. Granville Munson,
Colonel John M. Weir,
Colonel Erwin M. Treusch,
Major William T. Thurman,
Officers of the Judge Advocate
General’s Department.
Oscar Cox,
Assistant Solicitor General
of the
As
Provost Marshal:
Brigadier General Albert L. Cox.
1818
As Counsel for the
Accused except George John Dasch:
Colonel
Cassius M. Dowell,
Colonel
Kenneth Royall,
Captain
William G. Hummell.
As Counsel for the
Accused George John Dasch:
Colonel
Carl L. Ristine.
- - - - -
PROCEEDINGS
The
President. The Commission will open.
Colonel Munson. If the Commission please, the full personnel of
the Commission and all eight defendants and the reporter are all present. The personnel of the prosecution staff is
present except Mr. Rowe, who is absent on official business. The full personnel of the defense is present
except Major Stone, who is absent on official business.
May I make a more or less technical
motion on one or two things?
May the record show that the following
persons have been sworn, outside the court room to secrecy, first having been
warned of punishment for violation of the oath:
Captain Lyle D. Keith, J.A.G.D., and
Colonel John M. Weir, J.A.G.D., Assistant Trial Judge Advocates, on July 16,
1942; Miss Dorothy P. Klein, 1418 Varnum Street,
Northwest, Washington, D.C., on July 18, 1942, and Miss Amanda Stilley, 1867 Wyoming Avenue, Northwest, Washington, D.C.,
on July 20, 1942, the last tow persons having been sworn by me.
May the record also show that Major
William T. Thurman, J.A.G.D., has been recognized as the Assistant Trial Judge
Advocate since the beginning of the trial.
1819
The President. Very well.
Colonel Munson. May we invite attention to the fact for the
purpose of the record, that there is no exhibit for Prosecution’s P-199, that
number not having been used.
Colonel Royall. May it please the Commission, in an effort to
expedite, so far as possible, putting on such evidence as the defendants may
have to offer, we would like to have Captain Wade Bruton
admitted to the court room for the purpose of assisting us. He has previously been sworn to secrecy and
has been assisting us outside, and there has been no necessity, up to this
time, to bring him in. We think it would
expedite matters now to do so.
The President. All right.
It is so ordered.
Colonel Munson. Do you desire the oath readministered
in the presence of the Commission, in view of the fact that he will be in the
court room?
The President. I think if you give the proper reminder it
will cover the case.
(Colonel Martin F. DuFrenne and Corporal Claude Black entered the court room.)
Colonel Munson (addressing Colonel Dufrenne). I am
directed by the Commission to inform you that every person who is in the court
room must take an oath of secrecy, and that violation of that oath may result
in proceedings in contempt or other proceedings of a criminal nature against
anyone violating it. In taking the oath
you understand that to be the fact?
Colonel DuFrenne. Yes, sir.
Colonel Munson. Do you solemnly swear that you will not
1820
divulge
the proceedings taken at this trial to anyone outside of this court room until
released from your obligation by proper authority or required so to do by such
proper authority?
Colonel DuFrenne. I do.
Colonel Munson. (Addressing Corporal Black) You have heard the explanation that I made to
the Colonel?
Corporal Black. Yes, sir.
Colonel Munson. Hold up your right hand. Do you solemnly swear that you will not
divulge the proceedings taken at this trial to anyone outside of this court
room until released from your obligation by proper authority or required so to
do by such proper authority?
Corporal Black. I do.
Colonel Munson. Will you state for the record your full
names, please?
Colonel DuFrenne. My name is Colonel Martin F. DuFrenne.
Corporal Black. My name is Claude Black.
Colonel Royall. May it please the Commission, it now appears
from information we obtained from the Attorney General that no other
confessions or declarations by any of the defendants are at this time to be
offered by the prosecution. Therefore,
if it meets with the approval of the Commission, we would like very much to
present our argument in favor of restricting each confession or admission of a
defendant to that defendant and excluding it as to the other defendants.
Is it in order for us to proceed with
the argument at
1821
this
time?
The President. If there is no objection.
The Attorney General. No objection.
The President. Do I understand that you have in any way
notified us that the prosecution rests?
The Attorney General. The prosecution will rest presently. I think there are a few witnesses who, after
his argument, Colonel Royall may wish to recall for further
cross-examination. Otherwise we have
rested, so far as our own evidence goes.
The President. Proceed, Colonel Royall.
Colonel Royall. May it please this Commission, the question
which we wish to present to the Commission has, I think, been somewhat narrowed
by statements made in the record by the Attorney General; and if I am not
correct about this I of course want him to correct me. In the course of the last argument that we
had on this question my recollection is that the Attorney General said that he
was not contending that these confessions were relevant or admissible as
against other defendants except in connection with the conspiracy charge.
Am I right about that?
The Attorney General. I do not remember the statement. But go ahead.
Colonel Royall. The reason I was making that inquiry is that
it might materially affect the length of my argument and the territory to be
covered, because if it were merely as to the question of confessions, the
question would be a rather narrow one.
But in the absence of some specific agree-
1822
ment to
that effect from the Attorney General I will address myself to the materiality
and competency and relevancy as to all of the courts.
The President. Possibly, since there is a difference in
remembrance the counsel and the Attorney General can, off the record, discuss
that point, since it may make quite a difference in the dispatch of business. I remember, myself, that the Attorney General
made some comment on that point. I do
not remember it exactly as being the way it has been stated by counsel.
Colonel Royall. I am not certain that that is correct,
myself, sir, and that is the reason I said I was a little doubtful about
it. In such a voluminous record it is
rather unwise to be dogmatic about one’s recollection. I do remember some statement of a similar
import.
The Attorney General. I remember we discussed beforehand whether
the confessions were admissible, confining it largely to the question of
conspiracy.
The President. I think probably I can bring back to your
remembrance what I think Colonel Royall has in mind. It was when you came up together here, after
I had made my ruling for the Commission on the point of the continuing
objections on which we had suspended ruling.
We made a ruling and then we suspended it again on the statement of
Colonel Royall. Just what you stated at
that time I am not sure. Possibly we
might refer to the record, although I am not sure it was even on the record.
Colonel Royall. I think it was, sir.
The President. My remembrance, Mr. Attorney General, is
1823
that
when we made our ruling you made some such statement as that if we did suspend
ruling, on the request of both of you might possibly reach some agreement.
The Attorney General. I remember, now, what you have in mind. I do not think this is the same matter. I think I said that after all the confessions
were in I might be able to withdraw my presenting one confession against all of
them, and you might therefore rule later.
I do not think that is what Colonel Royall has in mind.
Colonel Royall. No.
The President. That is what I had in mind in this discussion.
Colonel Royall. In any event, I do not think that the
Attorney General, if he mad the statement as I recall it, would be bound by it
at that time.
The President. Then I think we will have Colonel Royall
proceed with his remarks.
Colonel Royall. Here is what he said, sir, if I may put this
in the record. Not that it is binding,
if the Attorney General takes a different position now. I think he has a perfect right to do so.
Referring to page 749:
“It seems to me that with respect to
the other offenses the confessions of one man is not evidence against another,
the theory of a conspiracy being that in a joint effort the act of each man
affects the others, although I think, very clearly and very frankly, the
confessions of one man with respect to a crime other than the conspiracy would
not be admissible against another defendant as matter of substantive
defense. With respect
1824
to
conspiracy I think the picture is different.
I think I have already argued on that.”
That is as I recalled it.
The Attorney General. I think that is correct substantive law. At that time I think we were discussing the
proper rule of common law evidence. I do
not think that that would necessarily apply to a commission which is permitted
to take any evidence which a reasonable man would accept. I think I was discussion the rule in law
courts, and I think it is pretty clear, and I will stand by what I said,
entirely, on the record.
Colonel Royall. Now, may it please the Commission,
regardless, of whether or not there is any agreement about that—and there seems
to be none—it seems to me that the law is so exceedingly clear and well
established as to the competency as to other offenses that it needs very little
argument to show that such confessions are not under any circumstances
admissible as to any charge except the last charge made against these
defendants.
A confession or a declaration made by
one person relating to another person is nothing but hearsay, and I do not
suppose it is necessary to argue at any length the reasons against convicting
people upon hearsay. If that were to be
done you could convict somebody on common gossip, and there would not be any
very logical way to draw a distinction.
When one gets on the stand and says what a second man says about a third
man, if you admit it you are basing your consideration of the evidence upon
what the second man said. In the first
place, you are taking evidence that is not subject to
1825
cross-examination,
not subject to any ordinary means of impeachment. You are merely taking the bald statement of a
second person so far as the first one recollects it, and giving all the
flexibility that you can give or want to give to the rules of evidence, to say
that a man can be tried for a serious offense upon what one man recollects that
another man said is so far from accepted practice, not only in the courts but
in the realm of common sense, that it does not seem to me that there ought to
be any argument in favor of it.
I am certain that each member of this
Commission and of the prosecution’s staff, as well as the defense staff, is not
prone in private life to convict another man mentally of an offense upon
hearsay evidence. Some people listen to
gossip and believe it to be true, but most people who intelligently analyze a
thing do not reach unfavorable conclusions upon hearsay outside of the court
room. All the more should that rule
apply in the court room and in a case where there is a serious charge against
these parties.
The reason that under certain circumstances
confessions are admissible against conspirators or alleged conspirators does
not apply to the case of other offenses.
1826
The only reason why the law under any
circumstances admits hearsay as to one alleged conspirator against another is
that the theory of conspiracy is that they were acting in that conspiracy
together and that, therefore, one of them was the agent of the others; he was speaking for the
others in that conspiracy. That is the
only reason why the law makes he exception to the hearsay rule in the case of
conspiracy.
Of course, that reason does not apply
in any degree to other offenses, and I know of no decisions—and I am confident
I am not exaggerating when I say that the prosecutions cannot cite any
decisions—which would tend to show that that exception to the hearsay rule goes
further than the charge of conspiracy itself.
When the Attorney General frankly made that statement in the record
which I read to you, of course he had in mind the unanimity of opinion that the
evidence is not competent on other offenses.
There would have been no other reason to have made the statement.
At one time he suggested that it might
be a part of res gestae. I do not know
whether or not that will be seriously urged.
In the first place, it would not be res gestae under any decisions that
we know about unless it were a statement made in connection some act which at
the time was being done. Res gestae
means a contemporaneous statement made while some crime or alleged crime is
being committed, and is so much a part of the crime itself that the court says
it is really a verbal act in the crime and, therefore, does not apply to
statements not made while the offense is in progress of being committed a the
very time of the statements and, therefore, does not apply to any statements a
man makes
1827
while
he is in custody.
Not only is that true, but even where
res gestae is admitted, the Court-Martial Manual says it is not admitted for
the purpose of proving the truth of the remark.
Therefore, it would not be admissible as against the other defendants in
any event. That reference in the
Court-Martial Manual is on page 118.
So it seems to us exceedingly clear that as to other
offenses than that of conspiracy, these confessions should be rejected so far as
the other defendants are concerned; that is, those who did not make the
statement or give the confession. As to
that, we respectfully ask that the Commission rule in accordance with what we
have contended and with what the Attorney General has admitted to be the
general rule of the law.
That brings us, then, to the question whether these
confessions are admissible on the fourth charge, which is the charge of
conspiracy. As I stated a few minutes
ago, the reason why confessions are ever admitted against other conspirators is
on the theory that one was action for the others. The law has prescribed two tests and two
rules for determining whether they are admissible. We have discussed that before. The Commission had those tests in mind—at
least, one of them—when it deferred its ruling for a while and permitted us to
leave the matter open for further argument.
The first one is that there must be evidence of a
conspiracy even if you disregard the confession—that is, evidence outside the
confession. The second one is that the
confession must have been made in furtherance of the conspiracy.
As to the first test, we cannon argue to the court that
there is not evidence outside the confessions that there was
1828
a conspiracy. I would not think of making such an
argument. There is evidence. Without arguing against my own case, it is
perfectly apparent that where each defendant has himself stated that there was
a conspiracy in effect--two of them saying that they did not join in it with
any intent, but stating the facts of the school, the submarine, and everything
else--we cannot argue that there is not evidence outside the confessions. We cannot argue it, also, because of the
physical evidence that has been produced.
There is evidence outside the confessions that there was a conspiracy.
But the second test has not been met. It has not been shown that these confessions
were made in furtherance of the conspiracy.
That is a prerequisite before the law makes an exception to the hearsay
rule, the ordinary rule against hearsay, and admits confessions. The Court-Martial Manual, that I have read to
you before, says that the statements must be made in furtherance of the common
design, and the only other one is when it is made in an effort to illegally
escape from custody by breaking jail, or something like that. That is on page 117 of the Court-Martial
Manual.
In seems to us to be axiomatic that when a man is taken
into custody, no statement he makes can be in furtherance of the
conspiracy. His part and participation
in the conspiracy has been stopped, unless he is conspiring with the officers
of the law. Nothing he says can possibly
be in furtherance of the conspiracy. It
cannot lend directly or indirectly to its accomplishment. It cannot further the ends of the conspiracy,
and it cannot be said that the statement is made on behalf of
1829
the others.
There is no logical way to say so, and the Court-Martial
Manual, in dealing with that very situation—that is, where there is not any
statement in furtherance of the conspiracy—says:
“The fact that a confession or admission of one
conspirator is inadmissible against the others does not prevent the use of such
confessions or admission against the one who made it, but any such confession
or admission cannot be considered as evidence against the others.”
That is found on page 117 of the Court-Martial Manual.
I am going to read to you in a moment some law from the
Federal Courts on the very question that we are discussing, as to the exact
situation we have here, a statement or confession made by a defendant after he
was apprehended, because that has arise time and time and time again, and, as
far as we know, it has never been held admissible. But we have some specific cases saying that
it is not, and we shall real those to you.
But let us look for just a moment at the practical side of
this matter as applied to this case. Not
only are we dealing here with confessions in which one defendant says what
another one thought, but all through these confessions, interwound
and interwoven, so that they cannot be extricated, are statements of one
defendant as to what another defendant thought, which he could not possibly
know; statements of one defendant as to what an F.B.I. agent told him about
another defendant--double hearsay; and in two or more instances what a
defendant said that an F.B.I. agent said that somebody else said about the
other
1830
defendants. There you have triple hearsay.
As I say, there is so much double hearsay in here, so much
evidence that would be incompetent if a defendant himself were on the
stand. Take the statement, for instance,
of the defendant Dasch. Contained in
there are hundreds of statements which Dasch could not be asked about if he
were on the witness stand. He could not
testify about them because he would be telling what other people said and what
other people thought. Yet the effect of
admitting these confessions is to put in evidence without the benefit of any
cross-examination evidence that one of these defendants could not himself have
given if he had been put on the witness stand and sworn. So what we in effect are doing if we admit
these confessions is saying that a man cannot be sworn and testify to a fact,
but he can be unsworn and somebody else can recollect
what he said, and it is admissible. That
is exactly what we have here in this case.
The argument was made, as I recall it, the other day that
even after the arrest of some of these defendants, the rest of the conspiracy
was continuing and that, therefore, this evidence was admissible. We said at that time, and say again, that it
is immaterial whether the rest of the conspiracy is continuing. The test is whether is was continuing as to
the man who was arrested. That case was
presented in a recent Federal Court decision,
“The statement of Hatlen
and Gates were admitted against him over his objection; the prosecution’s
theory being that the concerted purpose of the confederates had not yet been
completely fulfilled, and that the
1831
declarations
of one were admissible against the rest until it was. We need not pause
to consider whether in fact the common purpose had ended, because it would make
no difference if it had not.
Declarations of a confederate made after his arrest will not, except in most unusual cases, be in
furtherance of the common plan; we need refer only to our discussion of the
point in Van Riper v. U.S., 13 F. (2nd) 961, 967.”
Dealing with exactly the same situation, in Gambino v.
“ * * * if the agency is terminated or
the conspiracy is over, there is no longer any authority in the gent to act on
behalf of his principal or of the accomplice to act on behalf of his
co-conspirators. This is part of the
substantive law of agency and of conspiracy, rather than of the law of
evidence. The error in treating such
assertions as part of the res gestae”
has
been discussed.
“It, therefore, follows that
assertions made by an accomplice after the termination of the conspiracy come
within the prohibition of the hearsay rule and are inadmissible.”
That was dealing with a case where two of the defendants
were at large, presumably two or more of them were engaged in a conspiracy, and
one of them was apprehended and made statements to the officers.
There is another case, the case of Minner
v.
“The acts and declarations of a
conspirator to
1832
be
admissible against his co-conspirators must occur during the existence of the
conspiracy and must be in furtherance of its objects.”
I cited before the case of
In the case of Dowdy v.
“It is well settled that before such a
statement or declaration is admissible, it must not only be made during the
continuance of the conspiracy, but it mush be made in furtherance of it. These statements were nothing more than a
confession by Martin, implication Funk, and all authorities held that they are
inadmissible except as against the party making them.”
That was where one of the conspirators had been
arrested. I could cite numerous other
decisions if it were necessary to do so, and I will do so if the Commission
requests. But that is the essence of the
argument.
In recapitulation, briefly, the evidence is clearly
incompetent on any charge except the fourth; and it is also incompetent on the
fourth charge, first, because it was not made in furtherance of the conspiracy
and is, therefore, inadmissible under all the authorities that I have been able
to find, and I do not think there are any to the contrary; second, that those
confessions contain in them double and triple hearsay which would not be
competent even if the declarant who made the
confession were on the stand himself.
1833
Now, this is a matter that is of very serious import, of
course, to these defendants. The
prosecution has shown the facts relating to what was done with a great deal of
particularity, but when you come to weighing the guilt of these men by what a
second person said bout them, and their mental processes, or what a second
person said to a third, or what a fourth person said, then you are not doing
much more, on that feature of the case, than trying them on common gossip.
It is not our view that he ruling on this will dispose of
the case one way or the other; but, in the interest of these defendants, and in
an effort to see that this case, involving the question of their guilt or the
degree of their guilt or the specific offenses they may be guilty of, should be
tried upon evidence--and only upon evidence--that meets with the rule of
established law and the rule of reason, we feel that the Commission should
exclude these confessions on all the counts as against the defendants other
than those who made the specific confessions.
Colonel Ristine. If
the Commission please: I think there are
possibly just two matters that I wish to call to the attention of the
Commission. The Commission will recall
that, I think in two instances, the defendants had made statements, and after
those statements had been written up and presented to them for signature, they
stated that they did not desire to sign such statements because they were not
correct; that they were misstatements rather than truthful statements; and that
they wanted to make other statements which they said would correctly portray
the facts.
1834
Now, if an accused confessedly makes a statement after he
is apprehended and then says it is not a true statement, but then says he
desires to make a true statement, I say, Would it be safe for us to accept
either statement under those circumstances and use it for the purpose of
depriving a person of his liberty or his life?
That is the reason for the rule against statements made by
defendants after they are apprehended insofar as they may affect other
persons. Of course, the law presumes
that if a man says something against his own interest, that is probably true,
because the natural thing for him to do would be, if he says anything at all,
to say something in his favor, rather than something that is against his
interest. However, that is not true with
respect to anything he says about third parties.
I think the Manual summarizes this situation very briefly,
and I would just like to ready two paragraphs form page 117 of the Manual for
Courts-Martial. The heading is: “Acts
and statements of conspirators and accomplices”:
“In cases where several persons join
with a common design in committing an offense, all acts and statements of each
made in furtherance of the common design are admissible against all of
them. It is immaterial whether such acts
or statements were done or made in the presence of hearing of the other
parties.”
Now, that refers to the acts and statements that are made
in furtherance of the thing they conspired to do and are then engaged in
doing. Now we come to the exception:
1835
“The acts and statements of a
conspirator, however, done or made after the common design is accomplished or
abandoned, are not admissible against the others, except acts and statements in
furtherance of an escape. Of course,
this rule is not to be construed as affecting the competency of one accomplice
to testify against the others.”
In other words, any one of these defendants, if he had so
desired and had so requested, could have taken the stand, as a part of the
prosecution, and given evidence against all of the others with respect to any
matter about which he had knowledge.
Now, the last paragraph n that page:
“The fact that a confession or
admission of one conspirator is inadmissible against the others does not
prevent the use of such confession or admission against the one who made it,
but any such confession or admission can not be considered as evidence against
the others.”
Now, I think that very concisely states the rule that
should be applied in this case. In other
words, every confession made by every one of these defendants after he was
apprehended is not competent evidence against any of the others, but it is
competent evidence against the one who made the confession.
The Attorney General.
May it please the Commission.
The President. Mr. Attorney
General.
The Attorney General.
With due deference to my learned.
1836
opponents in the common law,
I think their argument has tended to complicate the issue before the Commission
rather than simplify it.
In simplifying an issue it is often well to move from a
contested point of law to the facts and see what the facts are. So lest us start by looking at the facts,
because, after all, what is before you is whether you believe certain facts on
a certain basis, that is all. It is a
very simple issue.
What are the facts?
Four men landed on
Now, the interesting thing--and this is the essence, I
think, of the whole think--is that those men, not having an opportunity to
confer or talk it over, on the whole made confessions entirely bearing out what
each other one said. Dasch supports
Burger, Burger supports Kerling, and so one, right down the line. Right down the line they are alike. You have got each of them. You have got all eight.
The extraordinary thing--and I think if you will simplify
it to this essence you will see how extraordinary it is--is that the defendants
say that in spite of that close interlocking of all those statements, all
alike, all bearing the
1837
obvious marks of
truthfulness, all comparable to each other, all showing this essential common
intent, although your Commission says you can listen to any evidence that would
convince a reasonable man, you must in some curious way take out of your minds
with respect to some defendants the confessions of the others. The whole thing is completely interlocked,
each one being tied in with the confession of the other.
In other words, the point of the argument is entirely aside
from the essence of the problem. The
point is, really, what weight you should give to them. Counsel says you must not even look at
them. You must not keep your eyes or
ears open to them. Because of some
technical rule of the common law you are not allowed to.
The question is a matter of weight, and as to any part of
any confession if there seems to be evidence which does not bear much weight,
that is for you to discard as you sum up and think about all the evidence
together. But to say, after the outline
which I have sketched, that no reasonable man would link that what Dasch said
to the F.B.I. in Washington had anything to do with Burger seems to me to be
simply preposterous, if you judge it under the power that is given you under
this Commission.
Now, that power is not unusual. This Commission is not set up with
extraordinary power. Every arbitration
board--I won’t say every, but most arbitration boards--dealing from a business
point of view and not bound by the technical rules of evidence discards the
hearsay rule. The various administrative
tribunals set up under statute--the National Labor
1838
Relations Board, the
Securities and Exchange Commission, and most of the administrative
tribunals--are not bound by the hearsay rule.
The rules under which this Commission is acting are rules
which have been applied largely to the expression of administrative law, the
practical way of arriving at the truth, and the question really is as to what
weight to give to these confessions.
You can test it by this: “Do I think that Kerling’s confession is backed by one of the others? It is inescapable to believe it is.” For instance, do you not think that now that
eight confessions are in the case has been proved rather more than when only
one was in? The thing ties so tightly
together that I cannot conceive hat you, as a body of reasonable men, would
exclude this evidence on the ground that it does not carry weight and that it
is really what it amounts to.
Colonel Royall. May
it please the Commission: It seems to me
that he Attorney General has illustrated very concretely the reason why these
confessions should not be admitted.
To the extent that they are
alike--and that is his argument for saying they are admissible--there is no
necessity for having them before the Commission. It is only not the extent that they differ
that it is material to the defendants to exclude them. It is only where one defendant says something
about the other person’s mental processes or acts that the other one did not
say that it is essential to exclude them.
As to the other features of the confessions, the argument advanced by
the Attorney General does not apply.
1839
Now, I want to comment on two other things, briefly. He cites the arbitration boards. Am I to understand that the prosecution in
this case says that a man’s liberty is to be determined upon the same basis
that businessmen would arbitrate a dollar-and-cents controversy? If that is the law, we are losing mightily
near all of our vaunted system of criminal justice.
I say further only that the Attorney General has cited no
authority of any court anywhere to sustain the position taken.
The Attorney General.
May I remind the Commission that you were kind enough to say that you
might adjourn just before 11? That is
just a reminder.
The President. The
Commission will recess for fifteen minutes.
(There was a short recess taken, at the
conclusion of which the following occurred:)
1840
The President. The
Commission is open.
Colonel Munson. The
full personnel of the Commission is present; the eight accused are present; the
full personnel of the prosecution is present except Mr. Cox and Mr. Rowe. The full personnel of the defense is present,
and the reporter is present.
Do you have a witness whom you desire sworn?
Major Rives. Yes,
sir. Miss Hall, the matron of the jail, is
to be sworn to secrecy, so that she may be in the court room at the time female
witnesses may be on the stand.
Colonel Munson. The
Commission instructs me, before administering the oath of secrecy, to inform
you that violation of that oath may result in contempt proceedings or
proceedings of a criminal nature. Each
witness taking that oath, therefore, has to understand that. I presume you do understand the consequences
of a violation of that oath?
Miss Hall. Yes, sir.
Colonel Munson. Hold
up your right hand, please. Do you
solemnly swear that you will not divulge the proceedings taken at this trial to
anyone outside of this court room until released form your obligation by proper
authority or required so to do by such proper authority?
Miss Hall. I do.
Colonel Munson. Will
you give your full name to the reporter, for the record, please?
Miss Hall. My name
is Lucile C. Hall.
Colonel Royall. May
it please the Commission, Captain Wade Bruton, to
whom I referred previous to the short recess, is in court, and I desire to
introduce him as an assistant in the defense counsel and to advise the
Commission that I
1841
understanding he has already
taken the oath of secrecy. As to whether
the Commission desires that a further oath be given him I leave to the
Commission.
Colonel Munson.
There was some confusion this morning, and when Captain Bruton’s name was mentioned Colonel DuFrenne
came forward and took the oath. Captain Bruton has been sworn to secrecy outside the court
room. I understand that the Commission’s
instructions are that I shall remind him of that oath, and, Captain Bruton, that any violation of that oath may be punished by
contempt proceedings or by proceedings of a criminal nature, which I think you
understand and which was explained to you prior to your taking the oath outside
the court room, was it not?
Captain Bruton. Yes, sir.
The President. It is
so ordered.
Are there any further remarks on the side of the defense or
on the side of the prosecution?
The Attorney General.
No, sir; nothing on our part.
The President. Mr.
Attorney General, the Commission inquires, for further enlightenment, whether
the Attorney General contends that the particular confessions of each of the
defendants should be admitted as affecting both the charge of conspiracy and
the other charges.
The Attorney General.
I do so contend, because on the record I stated, and I thought it was
for that purpose only, that I did not think that in a court of law the
confessions of any defendant should be admitted against another, except on
conspiracy charges. I thought that we
were discussing ordinary common law procedure.
Obviously it does not seem to me that that rule of common law, which I
frankly admit
1842
would be followed in a common
law court, should be applicable to this Commission, and therefore it seems to
me that the confessions of all are evidence of all of the crimes. I am perfectly clear on that in my own mind,
that when I made that statement in the record we were discussion the usual
procedure in a court of law, and of course in any criminal procedure in a court
of law you could not admit a man’s confession except in a conspiracy. That explains the theory.
The President. Have
counsel for the defense any further remarks?
Colonel Royall. We
have none.
The President. The
Commission will close.
The Attorney General.
May it please the Commission, may I say one more word?
The President. The
Commission is open for that purpose.
The Attorney General.
I am sorry. Just to bring that
point in a little more sharply, Mr. Cox has just handed me a copy of the
transcript, and I find that on page 749 the President asked me this question:
“I would like just to ask at this
point, if this were a court where the probative clauses that you quote had not
been in question, for example, but the rules of the common law only, what would
your feeling be on the statement of the defense counsel?”
So I think it shows that generally at that time we were
addressing ourselves to procedure in a court of law; and that was my
understanding.
The President. The
Commission will close.
(The Commission was then closed. When it reopened the following occurred:)
1843
The President. The
Commission will open.
Colonel Munson. The full
personnel present before the recess is again present.
The President. I
shall read from the record, page 1695:
“The President. Before we proceed, I have a statement to make
regarding the Commission’s suspended ruling on the continuing objections of the
defense counsel, in which he objects to the admission of statements contained
in the confessions and admissions of the various defendants as affecting the
other defendants.
“The Commission rules that those
statements are admissible as affecting the other defendants. In view of this decision, the counsel for the
defense is at liberty to recall for cross-examination any witness he may
desire.”
You may remember that at that time both sides requested
that the ruling be further suspended until the case developed further and the
defense counsel had an opportunity to argue.
We have now done that, and the Commission adheres to its former ruling
and will admit the confessions and admissions for all purposes.
Colonel Royall. May
it please the Commission: There is one other feature of the case to which I
desire to call the attention of the Commission at this time. The Court-Martial Manual provides, on page
62, as follows:
“The failure of an accused to take the
stand must not be commented upon; but if he testifies and if he fails in such
testimony to deny or explain
1844
specific
facts of an incriminating nature that the evidence of the prosecution tends to
establish against him, such failure may be commented upon.”
In other words, I have read the whole sentence, but the
point I wish to emphasize is:
“The failure of an accused to take the stand must
not be commented upon.”
The President. The
Commission is familiar with that rule of evidence and safeguard and will take
cognizance of it.
Colonel Royall. That
is read in connection with an extract from page 125, which reads as follows:
“The accused is at his own request,
but not otherwise, a competent witness.”
In the early part of this hearing the following proceedings
were had, and I read from page 325 of the record. This was by the Attorney General:
“May it please the Commission: The prosecution now intends
to call the defendant Burger. I
understand, and I have conferred with counsel for the defendants, that counsel
have advised him not to take the stand.
I should like to call him to the stand and to have the President of the
Commission instruct him as to his rights and duties under the circumstances.
“Burger, will you take the stand,
please?
“(Ernest Peter Burger stepped
forward.)
“Colonel Munson. Do you desire to instruct him, may I ask the
Commission, before he is sworn, as to his rights? Should he be sworn first, do you think?
“The President. I think we will not swear him.
1845
“Colonel Munson. The Commission will inform you of your rights.”
There then followed the instructions which the Commission
gave Burger as to his rights to go upon the stand.
May it please the Commission: The counsel for the
defendants are somewhat concerned about that occurrence, and for this
reason. The Manual expressly states that
a defendant can go upon the stand only at his own request. The defendant Burger had made no such
request. He was called without having
made the request. It was necessary for
counsel on his behalf and for the defendant Burger himself to make the
affirmative statement that he did not desire to go upon the stand at that time.
I am not more confident of anything than the fact that this
Commission will seek to and will, so far as human minds can do so, carry out
the express provision I read from the Court-Martial Manual. But the defendant Burger having been asked in
open court to take the stand and having been put in the position of having to
refuse to do so or elect not to do so, it is very difficult to fail to construe
some feeling that he might be unwilling to give all the facts. In recognition of that practical situation,
first, it is our intention at this time to tender the defendant Burger to the
prosecution or to the Commission for such questioning as they desire to
propound to him. We think in his
interest that that should be done now, before the prosecution’s case
rests. That is, we think we should
tender him now.
There is one second thing I wan to say about that. The defendant Burger stated, as I recall his
statement here--I think
1846
I can give the substance of
it correctly--that he was acting under the advice of counsel in not taking the
stand. That was correct.
I hope I do not transgress any proprieties--if I do, I want
the Attorney General or the Commission to stop me--but I desire to tell the
Commission, in view of these unusual circumstances, why we so advised the
defendant Burger at that time. It will
not involve any evidentiary matter that could possibly prejudice the case. Defense counsel were in a rather embarrassing
position about the defendant Burger. He
wanted to make available to the prosecution or the Commission anything that he
knew about this matter. We, however,
were representing six other defendants; and not knowing at that time just what
evidence would be adduced or offered or admitted as to the six other
defendants, we had to make a choice, and we did not want to throw that burden
onto anybody except ourselves. In
resolving that possible conflict of interests, we thought that the only course
we could follow, since six were on one side, so to speak, and one was on the
other, in the matter of whether Burger should go on the stand, was to advise
Burger not to take the stand.
The considerations have very largely disappeared. I might say they almost entirely disappeared
with the ruling the Commission has just made about the confessions. Therefore, we do not see how tendering the
defendant Burger for examination and the doubt we had, or the possible conflict
of interests that we thought existed, has been removed.
Those are the two purposes: first, to remove any
1847
possibility that anyone
should have the impression that the defendant Burger does not want to give
every fact that he has; and second, that three is no apparent conflict with the
interests of the other defendants at this time.
Before I sit down, I want to say that it is not my
intention by anything I have said to imply or to state that the Attorney
General has done anything improper in this matter--certainly not with the
intention of doing anything improper. I
am not very familiar with the Court-Martial procedure. It is possible that the course the Attorney
General followed was thoroughly in line with what is done in Courts-Martial; I
do not know. I am know making these
remarks for the purpose of criticizing anybody, but merely to clarify the
situation in order that the Commission may understand why we are at this time
tendering the defendant Burger for such examination as the prosecution or the
Commission may desire to make.
The Attorney General.
On behalf of the prosecution, we do not wish to accept the tender that
the prosecution put Burger on the stand at this time. We appreciate the offer, but we do not wish
to accept it.
Colonel Royall. May
I inquire of the Commission if they desire to examine the defendant Burger at
this time with reference to any feature of his statement or any feature of the
case? If so, he is available for that
purpose.
The President. There
seems to be no desire on the part of the Commission at this time.
Colonel Royall. May
it appear in the record, then, that we made this tender?
The President. Yes.
1848
The Attorney General.
May it please the Commission:
Three witnesses are now being called for purposes of
cross-examination. After they have been cross-examined,
we shall close our case formally.
We will call Mr. Drayton.
Colonel Royall. We
should like Mr. Donegan to remain outside the room
while the first witness is on the stand.
The Attorney General.
Mr. Donegan will withdraw while Mr. Drayton is
on the stand.
Lieutenant Page. Mr.
Spencer J. Drayton. This witness has
been sworn to secrecy.
Colonel Munson. Mr.
Drayton, you are reminded that you are still under oath.
Mr. Drayton. Yes,
sir.
SPENCER
J. DRAYTON
was recalled as a witness
and, having been previously duly sworn, testified further as follows:
CROSS-EXAMINATION
Questions by Colonel Royall:
Q Mr. Drayton,
were you present during a portion of the time when the defendant Kerling was
being interrogated by the F.B.I.?
A Yes, sir.
Q Were you
present when Agent Donegan during that interrogation?
A I was in
there part of the time, sir.
Q During that
time you were there, did agent Donegan strike, push,
or otherwise contact forcibly the defendant Kerling?
1849
A Not while I
was present, sir.
Q Did you see
Agent Donegan take Kerling
by the hair while you were there?
A No, sir.
Q Have you
discussed with Agent Donegan since the adjournment
Saturday or since the adjournment Friday the fact that you were to be recalled
to the stand?
A Yes Sir.
Q Have you
discussed with him the episodes that occurred while you and he were together
with Kerling?
A No, sir.
Q Did he say
anything to you about it?
A Sir?
Q Did Donegan say anything to you about the occurrence with
Kerling?
A He called me
in
Q Did you tell
you anything about the occurrence with Kerling?
A No, sir.
Colonel Royall. All
right, sir; that is all I can ask you.
The Attorney General.
That is all.
The President. Are
there any questions by the Commission?
There seem to be none.
The Attorney General.
That is all.
We will call Agent Hirsh.
Lieutenant Page. Mr.
Earl Hirsh. This witness has been sworn
to secrecy.
Colonel Munson. Mr.
Hirsh, you are reminded that you
1850
are still under oath.
Mr. Hirsh. Yes, sir.
EARL
HIRSH
was recalled as a witness
and, having been previously duly sworn, testified further as follows:
CROSS-EXAMINATION
Questions by Colonel Royall:
Q Mr. Hirsh,
were you present during a part of the time the defendant Herbert Haupt was
being questioned?
A Yes, sir, I
was.
Q Do you recall
what part of the time?
A I would say I
was present practically all of the time with the exception of probably just a
few moments here and there.
Q Mr. Hirsh, if
any questions I ask you require refreshing of your recollection by referring to
any written document, you will feel perfectly free to refer to it, will you,
sir?
A Yes, sir.
Q Did the
defendant Haupt tell you during the course of the conversation that he did not
leave his home in
A I believe he
did make that statement.
Q Did he tell
you that his decision to go to
A He was not
exactly sure on that particular point.
He did state that he ran out of funds while in
1851
and that he ran across an
individual named Hans Sass. This
individual introduced him to the German Consul in
Q The Consul
arranged to sent him to Japan; is that right?
A Well, there
was some dickering back and forth as to the purpose of the proposed trip;
hover, Haupt did not tell us the exact purpose of the trip.
Q But he did say
that they arranged to transport him to
A That is
correct, and he stated that he signed a contract to repay the money.
Q Did he tell
you that before he left
A No, sir, he
didn’t make that statement in my presence.
Q Did you tell
you that when he got to
A Well, it
wasn’t exactly put that what.
Q What did he
say about that? Tell exactly what he
said.
A At the time
the boat arrived in Yokohama, Japan, from Mexico City he did state that he was
met by persons from the German and the Japanese consulate offices, or the
Gestapo, as he put it, and at the time he was practically taken into
custody. However, he was away from them
a good part of the time; he had freedom of motion.
1852
Q But he did say
that thereafter they recalled him to
Q Now, did he
tell you that when he got to
A Well, it wasn’t
exactly put that way.
Q He said he
wanted to get back to the
A He thought
that possibly that was the only means that he would be able to get back.
Q In other
words, he thought that the only way he could get back to his parents in the United States was to get into this plan;
isn’t that correct?
A No, sir. He said that he accepted the proposition
first before he stated that that was the only means of returning to the
Q Yes, I
understand that; but in connection with his agreement to this school, he did
tell you that he thought that was the only means he had of getting to the
A Yes, that is
right.
Q Now, did he
tell you that while he was in
A Yes, he did
make that statement.
Q Did he tell
you that during that period he was constantly watched and annoyed, or at least
occasionally watched and annoyed, by the Gestapo and police?
A He stated
that he was occasionally annoyed, that is
1853
true.
Colonel Royall. That
is all. No further questions.
The President. The
witness will be excused.
The Attorney General.
Mr. Traynor.
Lieutenant Page.
Duane Traynor.
The witness has been sworn.
Colonel Munson. Mr. Traynor, you are reminded that you are still under oath.
DUANE
L. TRAYNOR
was recalled as a witness
and, having been previously duly sworn, testified further as follows:
CROSS-EXAMINATION
Questions by Colonel Ristine:
Q Mr. Traynor, I believe you were on the stand before?
A I was.
Q I believe you
were the one at F.B.I. headquarters with whom Mr. Dasch first communicated here
in Washington D.C?
A I was.
Q That communication
was by a telephone call from Mr. Dasch?
A It was.
Q Now, did Mr.
Dasch tell you, when talking to you over the phone from the Mayflower Hotel
that he would like to, if possible, come over at an earlier hour that the hour
you had suggested?
A I suggested
1854
to that time.
Q And did he
request you to send some agent from the F.B.I. office to accompany him over to
the office?
A He indicated
to me that he would have a hard time finding my office, and I told him that an
agent would come and pick him up and bring him over here.
Q Now, that was
the first information, so far as you know, that the F.B.I. had as to the
location of any of the group that are now being tried?
A That was the
first indication that I had.
Q Had you
previously received word from the
A I had
received no such notification.
Q Now, when Mr.
Dasch appeared at your office did he request permission to see and talk with
Mr. Hoover?
A I can’t
recall at this time that he in so many words said that, although during that
time I was talking to him to he did express a desire to see Mr. Hoover if
possible.
Q And do you
recall what you told him about his being permitted to see Mr. Hoover?
A I told him
that Mr. Hoover was not available to see him, that Mr. Hoover might possibly
find time to see him while in
Q Now, did Dasch
tell you at the outset that in appearing voluntarily to tell his story he did
not do so as an informer or a stool pigeon, but because he considered it his
duty, not only as a Christian but as an enemy of Hitler, to
1855
make full disclosure to the
F.B.I.?
A No, sir, he
did not say that.
Q Well, would
you tell the Commission what your recollection of his statement is in that
regard?
A He told me
that he had a mission in coming over here; that the mission was to fight Hitler
and his Nazi crew; that he could not fight it in Germany and therefore he had to
find a way by which he could get out of Germany and therefore fight them from
the outside. He stated that he was
coming and furnishing this information as a means towards gaining that end.
Q Now, did Dasch
also tell you that it was his sincere conviction that in coming to the
A I don’t
recall him using that phraseology.
Q Well, would
you tell us as best you can recall what phraseology he used?
A He expressed
a desire to fight Hitler and to fight Hitler in his own way- not with guns but
by propaganda.
Q Now, I believe
he did ask you for permission to make his statement to you in his own way,
rather than by starting out on a question and answer basis, did he not?
A He did not
ask permission. He stated that he wanted
to give it in his own way, and that was the only way he wanted to tell it. He wanted to tell it from the very beginning-
take as much time as he thought he needed.
Q And I believe
that you accorded to him that privilege?
1856
A I did.
Q He was, I
believe, just a little bit slow in getting down to some of the concrete facts
that your Department was interested in, was he not?
A He refused to
give that kind of information at all at first except in the way he wanted to
tell the story.
Q And I do not
believe he gave you the name or address of any of the others in the group until
in the statement of the first day; isn’t that correct?
A He mentioned
the names during the statement of the first day, but he gave us no indication
of where they might be located or where they could be found until
Q And then, I
believe, he gave you the name of Burger and where Burger could be found.
A That is
correct.
Q And that
information, I take it, was forwarded to
A I know from
wires we have received from
Q Dasch did tell
you at the very outset that he was going to tell the whole story connected with
the mission of the group that he came with and any other matters that might be
of interest to the Department, did he not?
A No, he did
not say that the very outset. He
eventually told us everything we asked him, but he did not
1857
say that he would tell us the
whole story- in fact, he indicated that he might hold back something until he
got in touch with other persons.
Q How did he so
indicated that?
A An example of
that would be in the first hour in which he was in my office. He had indicated that he came to this country
form
Q Well, he told
you at the outset that he wanted to tell the story in his own way, did he not?
A He did.
Q And your
interjecting interrogations while he was telling the story would not be a
compliance with that request, would it?
A May I hear
that question again, please, sir?
Q Colonel
Ristine. Will you read the
question?
(The last question was read by the reporter.)
A I figured I had
the right to put out questions to him when he was telling the story.
Questions by Colonel Ristine:
Q Of course, if
Dasch, appearing for the purpose of aiding this Government, in telling this
story at the very outset divulged the names of the other parties and their
location, so that you could immediately apprehend them, it might be
1858
difficult thereafter for him
to make his position clear in this matter; isn’t that correct?
A I do not
believe that is correct, either, sir.
Q Well, Mr.
Dasch certainly wanted to convince the F.B.I. and be sure that they understood
the intentions he had in coming over with this group? That is correct, isn’t it?
A I don’t know
what Mr. Dasch’s intentions were except what he told me.
Q Well, wasn’t
it evident from what he told you and the manner in which he told you that they
were his intentions?
A I am sorry,
but I do not quite follow what you want by that question.
Q Well, he is
now confronted with being tried with the other seven men. That is a fact, isn’t it?
A Yes, sir.
Q And apparently
he did not convince somebody somewhere of the intention that he had before he
left
Colonel Royall. The
other defendants object to that examination.
It is calling for a conclusion of the witness. I do not know whether it can reflect on any
of the other defendants, but if pursued it might well reflect on all eight of them
Colonel Ristine. I
cannot see where.
Colonel Royall. That
calls for a conclusion, may it please the commission. If there is any question about that
1859
fact, I think the answer
could be read to the commission. It
calls for the opinion of this witness on something that might be prejudicial.
Questions by Colonel Ristine;
Q Mr. Traynor, I believe you spent the night of Jun 19th
to the 20th in room 351 of Mr. Dasch’s at the Mayflower hotel, did
you not?
A I do not
recall the room number at the present time, but I spent that night with Mr.
Dasch in his hotel room.
Q And on that
occasion did not Mr. Dasch show to you the briefcase and the money which he had
there in the hotel room?
A He did.
Q And did you
see the notations that were made on the envelopes setting forth the amounts of
money, as well as that other notation that was on one of the envelopes?
A I saw the
notations he made on the envelopes. I do
not know as I know what counsel is talking about when he says the other
notations on the envelopes.
Q Prosecution’s
Exhibit 172, Mr. Traynor, I believe was in the
briefcase at the time you looked at the money and the contents (handing a
document to the witness)?
A I saw a
letter similar to this one.
Q And would you read
the contents of that so as to refresh the Commission’s mind about the matter?
A “
Q Is that word
“Their”?
A The word may
be “their” “proper”
1860
Q “purpose”?
A “purpose,” I
believe the word is. “but to be used to fight them Nazis. George J. Dasch, alias George J. Davis, alias
Franz Pastorius.”
1861
Q You say that
that was in the brief case which he showed you, along with the money?
A I do not know
whether that particular letter was in the brief case or not. I know he showed me a communication similar
to that.
Q And it was
written on the stationary of the Hotel Governor Clinton, the same as this?
A It was.
Q This document,
by the way, was offered by the prosecution as part of its evidence, as
prosecution Exhibit No. 172. Now, I
believe that Mr. Dasch showed you the other things in the room. You saw the other suitcases and clothing in
the room at the same time that you saw the money; did you not?
A He showed me
two suitcases, and I noticed clothing hanging in the closet. I did not examine it.
Q I believe that
Mr. Dasch told you in connection with showing you the money that he had brought
the money with him from
A He did.
Q He was not at
all secretive about any of this, was he?
He cheerfully and willingly showed you these things, did he not?
A He did.
Q He was in no
way awed by the fact that he had carried that suitcase down or that he had that
suitcase with that amount of money in it, from his appearance or from his
actions, was he?
A I don not
believe I am able to state whether he was awed or not. He took it in a manner of carefreeness.
Q And it was
part and parcel of his willingness to-
1862
make full disclosure, was it
not, the disclosure that he made respecting the money, the amounts, and all?
A I cannot
answer that question yes or no. It was
part of his telling me his story.
Q Did he express
to you pleasure at having obtained that large amount of money which he thought
then he would be able to use in his efforts to fight Hitler and the Hitler
regime?
A He did.
Q Did he say at
that time that he was sorry that he had not been able to obtain a grater sum
for the purpose?
A I do not
recall that statement; no, sir.
Q Did he say
anything in substance and effect like that?
A I do not
recall that he did.
Q Did you tell
Mr. Dasch that you had installed agents to guard the room and the money,
because there was such a large sum of money and because people have even killed
others where such large sums were involved?
A I cannot
answer that question yes or no, either.
I did tell him that we had installed guards up there in order to be
certain that the money did not disappear and also for his own protection.
Q What did you say
about the fact that people had even been killed where a large sum of money was
involved?
A I made no
statement such as that.
Q At least, you
do not now recall having made such a statement?
The Attorney General.
Wait a minute. He said he made
1863
no such statement; and I do
not think it is proper to then say that he did not recall it. He said frankly and definitely that he made
no such statement.
Colonel Ristine. I
understood he said that, and I still think that my question is proper. I do not think the witness would attempt to
say that he could remember everything that occurred on that occasion.
Questions by Colonel Ristine:
Q I believe Mr.
Dasch told you that he was wiling to further cooperate with the F.B.I. office
in regard to any matter that he could be helpful about., respecting defensive
measures, did he not?
A He did.
Q I think that
during the interrogation you went into a lot of subjects other that the
specific instance about which this trail is being held, on the grounds or with
the explanation that defensive measures which this government might desire to
take would be helped and furthered by going into those other subjects. Tell the commission in your own way what he
said respecting that matter.
A I discussed
with him other subjects and told him that having just come from
Q He was
particularly interested in having an opportunity to talk over the radio to the
German people for propaganda purposes, was he not?
A He was.
1864
Q And it was
that desire on his part which he expressed to you that also reflects his
statement that he was glad to have that amount of money because he thought then
that it would be available for that purpose?
A He thought
that this money would be available for that purpose,. And he was pleased that
he had been able to get out of
Q I believe Mr.
Dasch said with respect to his explanations about defensive purposes that he
was willing to cooperate with the F.B.I. in any way he could, and especially in
tracking down people who, under protection of American citizenship, were
helping the present German government in one way or another?
A He did.
Q Did Dasch
express to you his extreme desire to be permitted to fight Hitler by way of the
radio?
A He did.
Q And did you in
that connection, Mr. Traynor, explain to him that in
due time he would be introduced to the right people who could and would discuss
the propaganda phase with him?
A I did not
tell him that exact wording; no, sir.
Q Tell us in
your own way your recollection of it.
A I pointed out
to him, in talking with him, that we had two primary tasks. One was defensive, as far as the
1865
was the primary
objective. After that was accomplished
and after we had been able to insure ourselves that this would not happen, then
the other objective, which he was more interested in, the offensive objective from
the point of propaganda could be considered, and that at that time we would
give consideration to his particular problem with regard to propaganda
Q Did it appear
to you in your many discussions with Dasch that he was a sincere and truthful
person and that the facts and material which he was giving to you could be of
great service to the
The Attorney General.
I think I must object to that question, if the Commission pleases. I do not think we can permit this question.
Colonel Royall. If the Commission pleases, I also
object.
The President. Both
the defense and the prosecution object.
Colonel Ristine. I
noticed that situation, if the Commission pleases. It does not seem to me that a person who has
talked with another over a long course of time, four or five days, could state
to the Commission the appearance of the witness as too truthfulness and
willingness to communicate valuable
facts. I know of no other way to
get it in, except that the person who participates in the conversation be
permitted to express his opinion not to the appearance of the witness and
whether or not the witness appeared to be truthful and sincere. I think that on previous occasion a similar
question was objected to, and the Commission ruled that he could express his
opinion because the question called for a state-
1866
ment of
fact, the fact being whether or not the person appeared at the time to be
sincere and truthful. I think it is a
matter that is competent in evidence.
The President. Since both sides object to it, I would like
to hear any remarks they are to make.
The Attorney General.
I take it that this witness was called to testify the facts. He is not an expert who can testify to
conclusions. That is a matter for the
Commission. This witness testified to
the facts that Dasch told him. I think
that to ask him whether or not in his opinion Dasch was sincere is, on its
face, a most improper question.
The President. I will ask the reporter to read the question.
The Reporter
(reading):
“ Q Did
it appear to you in your many discussions with Dasch that he was a sincere and
truthful person and that the facts and material which he was giving to you
would be of great service to the United States?”
The President. I
think you may ask him the question as to the first part, “Did he appear to you
sincere?”, and so forth.
Questions by Colonel Matine:
Q In these
discussions with Mr. Dasch did it appear to you that Mr. Dasch was sincere and
truthful in relating the events?
A That question
cannot be answered yes or no.
Q Answer it in
your own way.
A When I was
first talking with Dasch I had the impression that he was sincere and truthful
in what he was saying. There are many
things that have arisen since which
1867
have now made me wonder, so
that I do not know whether he was or he was not. For instance, he at one time stated that
under no circumstances must it be known that he had come to the F.B.I.; that if
Germany found out about it his mother and father and relatives in Germany would
be immediately killed, and that was of primary importance to him.
Later I am told that he did not--
Colonel Royall. May
it please the Commission, I certainly object to the witness saying what
somebody told him, all of this evidence is being admitted against the other
defendants. I have no idea what his
answer is going to be, but if you just let him wander afield
we will never know what we are doing here.
That is the difficulty of asking for conclusions. I have no idea of what
he started to say, but since this testimony is being received against all of
the defendants, there certainly ought to be some relation between the knowledge
of the witness and the testimony. He
ought not just to be permitted to answer questions and form conclusions and
make arguments. The answer to the
question asked calls for just that sort of answer, and that is the reason we
object to it.
Colonel Ristine. I
do not believe the question was broad enough to cover any option which the
witness may have formed after his interrogations of Dasch. It was directed solely to knowledge he gained
from the interrogations of Dasch, and I do not think it should be qualified by
the witness, because after he concluded the interrogations somebody else told him
something which caused him to re-evaluate the situation. I think he has already answered that during
the course of the interrogation he formulated a definite opinion that Dasch was
1868
sincere and truthful. I was not insisting upon the witness giving up
any other matter which related to what somebody told him after the
interrogations were concluded.
The President. Have
you any further remarks?
Colonel Royall. We
have objected to the line of inquiry, but it would be satisfactory to us if you
just stop right there. We will not move
to strike out anything. He has not said
anything so far, but I am afraid of what he might say.
The President. I
would suggest that further questioning on this line be put in the form of a
direct question. And we will give either
side an opportunity to object if they wish.
Questions by Colonel Ristine:
Q Mr. Traynor, I believe you did tell Dasch in the course of your
several days’ interrogation of him that you believed in his sincerity and his
truthfulness. That is correct, is it
not?
A That is
correct.
Q Did you tell
Dasch about the apprehension and arrest of five of the others who are now on
trail?
A I told him
they had been taken into custody; yes, sir.
Q Did you then
ask him if he could give further and additional testimony respecting the other
two?
A I did.
Q Did he give
you such information as he thought would be helpful in the apprehension of the
other two?
Colonel Royall.
Objection, if the Commission please.
He is asking for a conclusion.
1869
Colonel Ristine. Let
me ask it this way.
Questions by Colonel Ristine:
Q What did Mr.
Dasch tell you?
The President. Do
not answer that until we get the tenor of the question, please.
Colonel Ristine. That is with respect to siding in the
apprehension of the other two. I am just
asking him to relate what Mr. Dasch said.
The President. All
right, if there is no objection.
Questions by Colonel Ristine:
Q If you can
recall what was said.
A May I have
the question clarified at this time to advise me exactly when you have
reference to; that is, at the time that I told him of the apprehension of the
other five or during any time that I was questioning him.
Q At the time
you asked him what information he might give respecting the apprehension of the
other two.
A He advised me
that he had furnished me with all the information that he had previously.
Q Had he
previously furnished you information which he thought would be helpful in the
apprehension of the other two?
A He had.
A Member. That is an
expression of what he thought. It is the
same thing that we talked about a moment ago.
Colonel Ristine. I
would be pleased to have the witness tell us what he said that he thought would
be helpful in the apprehension of the other two.
Questions by Colonel Ristine:
Q Just relate
what he said. If you can recall, Mr.
1870
Traynor.
A Generally, he
furnished information of Neubauer, as to what his name was, his description as
best he could recall it. He identified a
picture from our files and stated that he had a wife who had relatives in
Q And those were
the two that were not apprehended at eh time you related to him that the five
had been taken into custody?
A That is right
Q Did Dasch have
a conversation with you in which he expressed a desire to be placed in the same
jail in
A I do not
recall that he expressed a desire to be placed in a jail in New York, but when
he first came into my office, shortly after the conversation started, he did
express the desire to be thrown in the same concentration camp with the rest of
them, so that they would not know that he had furnished information.
The President. We
will pause now and take a recess for luncheon.
It is nearly
(Whereupon, at
1871
AFTER
RECESS
(The Commission reconvened at
The President. The Commission is open.
Colonel Munson. The
full personnel of the Commission, the eight accused, the personnel of the
prosecution except Mr. Rowe, ad the personnel of the defense except Captain Bruton, and the reporter are present.
DUANE
L. TRAYNOR
The witness on the stand at the time of the
The Witness. Yes,
sir.
Colonel Ristine. If
the Commission please, I should like to be permitted to interrogate this
witness with respect to the subject matter that he had in mind when he said
that he had believed that Dasch was telling the truth and was sincere until he
had heard something subsequent to this period of interrogation. I do not know what eh answer of the witness
would be, but I am afraid that the Commission might draw an improper inference
that there is not full disclosure with respect to that matter. I should like to have the witness permitted
to make the explanation that he was not permitted to make before the
The President. My
remembrance is that there was objection to that on the part of your colleague.
Colonel Ristine.
That is correct.
The President. And
also on the part of the prosecution.
1872
Colonel Ristine.
That is correct I think.
The President. I
made the remark tat that time, I think, to give you the opportunity of
interrogating the witness, that you might by particular questions bring out
what you wanted and that that would possibly do away with the objections that
had been already made. But that is
entirely your responsibility. It seemed
to me that they would be direct questions, possibly, that would not require the
witness to refer to the reporter to find out whether there was a question or a
statement.
Colonel Ristine. I will
try to develop it along those lines.
The President.
Please Do,
CROSS-EXAMINATION—Resumed
Questions by Colonel Ristine:
Q Mr. Traynor, would you please explain to the Commission what it
is was that caused you to say that you
doubted or wondered about the
truthfulness of Mr. Dasch’s statements, which developed following your
conference with Mr. Dasch?
Colonel Royall. May
it please the Commission, we shall have to object to that as a question capable
of being answered by a narration covering almost any field. It goes into the mental processes of this
witness, and where these processes might extend, I am unable to know ... I should like to ask this witness a question
before he answers, to see how far he will go.
We have no objection if the answer does not relate to the other
defendants. May I inquire?
The President. Yes.
1873
Question by Colonel Royall:
Q Does your
answer involve any statement with reference to any of the other defendants?
A It does not.
Colonel Royall. All
Right.
The Attorney General.
I have no objection.
Questions by Colonel Ristine:
Q Then, you may
proceed, Mr. Traynor.
A One of the
things which made me doubt the truthfulness of Dasch’s statements was that when
he was in my office and being questioned, he told me that under no
circumstances must the German Government learn of his part in this preceding;
otherwise they would immediately kill his mother and father, who are both over
70, I believe he told me, and his other relatives in Germany, and he showed
great concern over those people.. Later,
when he was up in New York City, he changed his mind and decided that it would
be perfectly all right for the world to know about his part is these
proceedings and that his mother and father and his relatives in Germany would
have to look out for themselves; that his mother knew what he was going to do
and she had utmost confidence in him and told him to do the right thing When I found that out, why, I was a little
bit doubtful in my own mind as to what was the truth and how much of what he
had told me was the truth.
Q In connection
with what did he change his mind? Or
with regard to what? What gave rise?
1874
Colonel Ristine. I
will withdraw that.
Questions by Colonel Ristine:
Q On a Sunday
morning preceding his decision not to enter a plea in order to protect his
father and mother, the newspapers did carry in the big headlines the story of
the arrest and apprehension of eight
spies and confessions by them, did they not?
A I think you
said the Sunday preceding. Did you mean
the Sunday subsequent?
Q I think it was
the same Sunday.
A Subsequent?
Q Yes.
A The Sunday
subsequent to his agreeing to this, the newspapers did carry such a story.
Q He had agreed
to enter a plea which he at the time said was not true in order to protect his
father and mother, had he not?
A He had.
Q That was for
the purpose of preventing that knowledge from getting back to
A It was.
Q When the Sunday
morning papers came out with the headlines showing the apprehension of these
people and that confessions had been made, the news was already out and it
would get back to
A That is not
correct. The headlines carried the story
of apprehension of all eight men. The
story indicated that Dasch was picked up and arrested subsequent to the
apprehension and location of some of the other men.
Q Well, at
least, the newspapers were not furnished
1875
to the defendants; that is true,
is that not?
A I don’t know
as to that; I wasn’t there.
Q Well, don’t
you know as a matter of policy that from the time they were taken into custody
down to the present they have not been furnished any newspapers?
A My
understanding is that Dasch, at least, was furnished newspapers. I do not know about the rest of them.
Q Up to what
time?
A That I do not
know. I know that he did see the stories
in the newspaper about the apprehension of all of the eight men.
Q Don’t you know
that he just saw the headline out in the corridor from where he was
incarcerated in
A I understood
that he had a newspaper in his possession.
That may not be the fact, but that is my understanding of it.
Q But it was the
change of his mind respecting the entering of the plea of guilty that caused
you to wonder about the correctness of his other statements, was it not?
A It was.
Q Will you tell
the Commission of any instance in that 254-page statement where the F.B.I. has
checked or double checked and found an inaccuracy with respect to that entire
document? Can you tell us of any
instance where he made any misstatement?
Colonel Royall. May
it please the Commission: May I again ask the witness a question?
The President. Yes.
1876
Question by Colonel Royall:
Q Will your
answer relate to any of the other defendants?
A It will not.
Colonel Royall. All
right, sir.
The Witness. The
254-page statement of Dasch—all of the statements contained therein have not
been checked as yet. Anything that we
have checked has been found to be the truth.
Colonel Ristine. I
think you may inquire.
Colonel Royall. I do
not care to ask any questions.
The Attorney General.
I have just a few questions I should like to ask, with the Commission’s
permission.
Questions by the Attorney General.
Q Dasch told you
he had landed on
A He did.
Q He first
mentioned Burger’s name and address, as I understand it, at 11:30 on the night
of June 19; is that correct?
A That is
correct.
Q When did he
mention the names and localities of the other defendants to you for the purpose
of finding them?
A He mentioned
them several times during the days he was questioned. He mentioned their names- at least, their
aliases--on the 19th, and furnished more detailed data as to the
other names and identities on the 20th. In the case of Werner Thiel, it was about the
22nd before he furnished the true identity of that man’s name,
1877
although he had gone over to
Q What,
precisely, did he say to you with reference to what he had told his mother
about his intended trip to
A He told me,
with respect to his mother, that he had not told her what the real purpose
was—that he was coming over here as a saboteur—but he had indicated to her that
he was going to South America to work on propaganda for the German government,
and that she did not know his part in coming over here as a saboteur and
fighting the Germany Government form the United States.
Q Were there any
other occurrences that you have not mentioned which occurred after Dasch’s
statement to you and signed confessions which made you doubt anything that he
told you?
A One of the
things which made me doubt the things he told me was the fact that in his
statement and in his talks with me, he ahs never satisfactorily explained why
it was that he waited from June 13 until June 19 to notify us of the landing of
these people. Had he told us on the 13th
or the 14th, when he first called our office in New York City, It
would have been possible not only to have apprehended the group that was
landing in Florida but to get the submarine, as well- the submarine and its
crew. Had he come in and told us where
Burger was on the 14th—Burger when first questioned, told of the
landing of another submarine at
1878
us to also have put out a
warning to the Navy in order that it might also have made an effort to
apprehend this crew and the submarine.
The Attorney General.
That is all.
RECROSS
EXAMINATION
Questions by Colonel Ristine:
Q You did know
that the next morning after the landing, or the next day after the landing, Dasch called the New York office of
the F.B.I. and advised them that on Thursday or Friday of the week following he
would come to Washington and was going to make full disclosure of the
information to Mr. Hoover, did you not?
A I did.
Q You think it
is strange, in view of what has actually happened to Dasch, after he took four
days to think over the method by which he would present the matter, that he
just did not, as soon as he landed, run right into the F.B.I. office?
A I do. He had a whole three weeks on the submarine
to think over what he wanted to say.
Q Did you not
know that when he came to
A He did not
know exactly what agency he wanted to talk to when he came to Washington, but
indicated he wanted to talk to the F.B.I. by calling the F.B.I. office on
Sunday, the 14th.
Q Did you not
know that before calling the F.B.I. office in
1879
of the Government in order to
ascertain the proper ones to call?
That
is what he told me.
Q Did you not
know that before calling the F.B.I., he called Colonel Kramer in Army
Intelligence?
A That is what
he told me.
Q Mr. Traynor, when the proposal was made to Mr. Dasch that a
plea be entered, coupled with the probable
incarceration of six months, undoubtedly the F.B.I. did not consider
that he was guilty with these other people, did it?
A We knew very
definitely he was guilty with the other people—that there was a violation of
the law—because he had participated therein.
Q Do you mean to
tell this Commission that in the estimation of the F.B.I., six months’
incarceration was a suitable punishment for a man who was guilty—equally
guilty—with these other defendants?
A There was
nothing ever said that he would be incarcerated for only six months.
Q Do you mean by
that there was nothing said by you?
A I know of
nothing said by anybody that he would be incarcerated for only six months.
Q You have not
been present in the courtroom while the testimony was given, I take it?
1880
A No, sir.
Colonel Ristine. I
think that is all.
CROSS
EXAMINATION
Questions by Colonel Royall.
Q I should like
to ask a question or two. Mr. Traynor, Dasch did tell you that
Burger was waiting in
A That is correct.
Q He also told
you that Burger was present when he, Dasch, communicated with the F.B.I. on
June 14, did he not?
A That is
correct.
Q You were not
present at any time during the examination of Mr. Burger, were you?
A I was not.
1881
Q Now, you spoke
a moment ago of some statement that Mr. Burger made relative to some submarine
landing on
A He did not.
Colonel Royall. May
it please the Commission, we would like that stricken form the record. The question did not indicate that that would
be brought out. There is nothing in the
testimony, as we recall it—and we have checked on it- to that effect, and the
fact that somebody may have told him that Burger said that, if he did—we think
it was a mistake. We do not think he
said, but if somebody told him that—it would be incompetent, and I think the
Attorney General would recognize that to be a fact. So we would like that remark stricken.
The President. If there
is no objection, that will be stricken.
Questions by Colonel Royall:
Q Mr. Traynor, did you ever see the defendant Burger to talk to
him at all?
A No, sir.
Q I knew you
were not present during his examination, but I did not know whether you had seen
him otherwise and discussed it with him later.
A I have never
talked with the defendant Burger.
Q Have you had
occasion to investigate the facts stated in his statement?
A So far as I
know, we have checked only one thing that Burger has told us, and that was, of
course, not in his statement.
Q Do you mind
telling me, not what you found out, be-
1882
cause that would not be
competent, but what did you check?
We checked on a story of his relationship with a girl by
the name of Eva Schuetz.
Q You yourself
have not talked with Eva Schuetz, have you?
A I have not.
Q Did she know
Burger?
A She did.
Colonel Royall. May
it please the Commission, in connection with the objection I made a moment ago,
I did not want it to appear that Burger had made conflicting statements unless
he actually had, and it appears from the statement he made that the reference
to another submarine is on page 49 of his statement, to the effect that another
submarine had left for the United States with two naval experts aboard, who
would be landed in the vicinity of New York, which is not Hatteras,
and I just wanted to call that to your attention.
Questions by Colonel Royall.
Q Mr. Traynor, I believe it is a fact that the defendant Burger
made a full statement, dated June 23. Do
you know about that or have you read it or seen it?
A I have seen
it. I have never read it.
Colonel Royall. That
is all I care to ask.
The Attorney General.
There are just a few more questions I might ask the witness.
FURTHER
REDIRECT EXAMINATION
Q Dasch came to
see you on Thursday?
A No, sir. It was Friday.
1883
Q Friday. He had been in
A That is
correct.
Q Did he tell you
what he did Monday and Monday night?
A He did.
Q What did he do
Monday and Monday night?
A Monday was
spent buying clothing, clothes for himself, as I recall it. Monday night I believe he went out to dinner
with Burger and possibly Heinck and Quirin- I am not quite clear on that at the
present time. Thereafter he left them
and went to some waiters’ club which he had formerly been a member of when he
was in the
Q He went there
Monday night?
A Monday night.
Q What did he do
there?
A He visited,
talked with various people there, stated he played cards, some sort of gambling
game. On Monday, stayed there all day
Tuesday and all Tuesday night.
Q You mean all
Monday night?
A All Monday
night.
Q And all
Tuesday?
A All day Tuesday
and Tuesday night.
Q What did he do
on Wednesday?
A As I recall
it, Wednesday morning he left the club and went back to his hotel, where he
went to bed and stayed in part of the day, then got up and went shopping again
with Burger, as I recall.
Q What did he do
Wednesday night?
1884
A Wednesday
night he went to bed at eh hotel.
Q And left for
A That is
correct.
The Attorney General. That is all.
FURTHER
RECROSS EXAMINATION
Questions by Colonel Ristine:
Q I believe, Mr.
Traynor, when he talked to the F.B.I. Sunday he told
the New York office of the F.B.I. that
he would com to Washington the following Thursday or Friday?
A That is
correct.
Q And he asked
that the F.B.I. notify the
A That is
correct.
Q And they did
not think seriously enough about the matter even to notify the
A That I do not
know.
Q Well, they did
not notify the
A I have previously
testified, sir, that, so far as my own knowledge is concerned, they never had.
Q Now, don’t you
know that Mr. Dasch bought some clothing for the trip to
A I do not know
that.
Q Now, didn’t he
tell you that on Thursday he went down to the store and go the clothing which
he had previously ordered and which had been altered?
A I believe he
told me that.
1885
Q And wore that
clothing to
A I do not know
about that, sir.
The Attorney General.
That is all, so far as we are concerned.
The President. Are
there any questions from any member of the Commission? There seen to be none. The witness is excused.
Colonel Ristine. If
the Commission please, there was some reference made during an argument
respecting the admissibility of the entire Dasch statement in which the
Attorney General referred to the fact that I was desirous of getting that
statement in its entirety so that it would not be necessary to call Dasch as a
witness. I am sure the Attorney General
did not intend to go contrary to the court martial rules. That no reference should be made to a
defendant’s failure to take the stand o with respect to his intentions of
taking it or not taking it; but I do move to strike that out of the record as
being an invasion of the guarantee which surrounds every accused. I mean that if he does not take the stand, no
comment can be made or inference be drawn from that fact; and if that be true,
of course it would be more prejudicial still to assert such intentions. I also wish to assure the Commission that I
was attempting to get the entire statement in not for the purpose of being
relieved of the duty of placing Dasch on the stand, but for the sole purpose of
permitting this tribunal to place the proper interpretation upon what had been
said--in other words, that
1886
you might have collectively
everything that he said for himself, as well as that which the other side
construed as being against his interest.
The Attorney General.
I understand that the motion is to strike from the record something that
I said with reference to the confession.
I see nothing improper in what I said, and therefore I see no reason why
it should be stricken. I think it is
comparatively unimportant, but I see nothing improper in what I said. Therefore I see no reason why it should be
struck from the record.
Colonel Ristine. I
would just like to call the Commission’s attention and the Attorney General’s
attention to what the manual says respecting the accused taking the stand or
not taking the stand. “The accused is,
at his own request but not otherwise, a competent witness. His failure to make such request shall not
create any presumption against him.”
Now, if the Commission please, that is clear. The accused may, at his own request and not
otherwise, take the stand. If he makes
no such request, no one is entitled to draw any presumption regarding his
failure to make the request. Now, what does
the Attorney General do? The Attorney
General, in order to keep the entirety of that statement out of the record,
openly asserted to this Commission that it was an attempt on the part of the
defense to get into the record a self-serving statement, so that the defense
would not be compelled to put the accused on the stand; and I say it was highly
improper to make any such reference or any such argument,
1887
and I move that it be
stricken form the record.
The Attorney General.
I do not care to add anything.
The President. I
remember the statement, but I would like to be definite about it and have
Colonel Ristine tell us the page of the proceedings, so that we can look it
over and give a decision on that.
Colonel Ristine. If
the Commission please, I do not know the page.
I know in connection with what argument it came up. I would have to look it up before I could
advise you of the page.
The President. The
Commission will close for the moment.
(The Commission was then closed. When it reopened the following occurred:)
The President. The
Commission is opened. The Commission
rules that the statement of the Attorney General to which the defense counsel,
Colonel Ristine, referred shall be struck from the record.
The Attorney General.
Do counsel wish to call any more witnesses for examination?
Colonel Ristine. I
think not.
The Attorney General.
The prosecution rests its case.
MOTIONS
FOR VERDICTS OF NOT GUILTY
Colonel Royall. May it
please the Commission, the defendants represented by Colonel Dowell and myself
desire to make certain motions for verdicts of not guilty. We desire to present them in this order, if
it is agreeable, and I would like very much, if the Commission thinks proper,
to dispose of them separately, because if that is not done it possibly works to
the injustice of one of the defendants whom we represent
1888
and who is entitled, I think,
to separate consideration of this motion.
I do not assume that you would have any particular
objection to that procedure.
Now, we first, on behalf of all the defendants whom we
represent except the defendant Burger,
with whom we will deal separately, desire to make a motion for a verdict of not guilty on
certain counts.
In this connection it is not my purpose to dwell at any
length on this part of the motion, because, in frankness to the Commission, the
decisions which you have made heretofore on our motions to strike would
probably dispose of the matter adversely to our contentions, and we are not
interested in just making motions to make them.
We want to make only those which we feel have some merit and some
possibility of a favorable ruling in light of the previous motion to the
Commission. There are four charges against each of the defendants. As I said a moment ago, this motion is on
behalf of Herbert Haupt, Heinrich Harm Heinck, Edward John Kerling, Hermann
Neubauer, Richard Quirin, and Warner Thiel.
There will be a slight difference between the cases of those other that
Haupt and the case of Haupt, and so I will talk about that first.
Charge 2 deals with the violation of the 81st
Article of War, and without reading it in full, the charge is relieving or
attempting to relieve enemies of the
1889
The 81st Article of War, as we conceive it, is
directed to a citizen of this country relieving the enemy; and of the group of
which I am speaking only Haupt is a citizen of this country. The other five are citizens of
We mentioned that argument on the motion to strike; and in
mentioning it we called attention to the fact that at that time there was no
evidence to determine which were citizens and which were not citizens. That evidence has now been adduced by the
prosecution, and it affirmatively appears that the five defendants, Heinck,
Kerling, Neubauer, Quirin, and Thiel, were citizens of
“Whoever relieves or attempts to
relieve the enemy with arms, ammunition, supplies, money, or other things, or
knowingly harbors or protects or holds correspondence with or gives
intelligence to the enemy, either directly or indirectly, shall suffer death or
other punishment as a court-martial or military commission may direct.”
If that meant that it was a crime for a German citizen to
help
1890
or covert offense, and does
not require that element. It says,
“Whoever relieves or helps the enemy.”
Therefore it does seem to us that clearly the citizens of
We have tried to find some authorities on that. I confess that our knowledge of military law
is not nearly so wide as that of the prosecution. However, we have not been able to find any
case where a resident of a belligerent nation was found guilty of violating
Article 81 in helping his own country.
If the prosecution has any authority on that contrary to our view, it
ought to carry weight with the Commission; but in the absence of such specific
authority, the meaning, it seems to us, is pretty obvious, that it cannot apply
to a German helping Germany. That is not
a cause that involves any element of spying or sabotage. It merely involves the element of aiding a
particular country; and it is perfectly apparent that some methods of aiding
would not be a crime under our law, if a German sided with
We think therefore, that Charge No. 2 should be dismissed
as to the five defendants whom I have named.
We brought that up on the motion to strike; and the only
reason that I am referring to it again is that at that time we called attention
to the fact specifically that the evidence had not disclosed which were
citizens and which were not citizens, and therefore the motion probably did not
lie. You will find that in the record. Therefore we repeat it now when the
1891
evidence does disclose that
difference.
While we also move for dismissal of the other charges of
these defendants, we frankly state to the Commission that those motions have in
substance been made before on the motion to strike, except as they relate to
applying. Therefore the Commission will,
I assume, be entirely consistent and deny the motions on the other charges
because the matter has been considered by the Commission and the Commission has
ruled against us. However, we think that
our grounds of the motion to strike were proper, and we will not repeat them
here, knowing that the motions will probably not be granted, and not wishing to
burden the Commission with any argument thereon.
Now, as to all six of there defendants, we do move to
dismiss the third charge, which is a violation of the 82nd Article
of Was. The 82nd Article of
War reads as follows:
“Any person who in time of war shall
be found lurking or acting as a spy in or about any of the fortifications, posts,
quarters, or encampments of any of the armies of the United States, or
elsewhere shall be tried by a general court-martial, or by a Military
Commission, and shall, on conviction thereof, suffer death”.
In the manual for Court-Martial is carried this notation
based upon the opinion of Attorney General Gregory:
“A person apprehended upon the
1892
1343
of the Revised Statutes and A.W. 82 cannot constitutionally be applied.”
The word used in the statute is “spying”; and spying has
been rather clearly defined by the Hague Tribunal and by the Rules of Land
Warfare, which are promulgated by the Army.
The Rules of Land Warfare, in section 204, say this:
“The definition embodied in the Hague Regulation and that
contained in the 82nd Article of War both included persons of all
classes, whether military or civilian, without regard to citizenship or
sex. Both likewise apply only where acts
are committed in time of wart.
The authorities further say that in further analysis of
1893
this provision as to spying
there are three necessary elements; and that is embodied in the definition of
“spying” in the Hague Tribunal and the definition of “spying” as carried
forward in the Rules of Land Warfare.
There must be, first, some clandestine conduct or some
false pretense.
Second, it must be in the zone of military operations; and
Third, is must be with intent to communicate military
information to the enemy.
There cannot be any question but that the prosecution has
proven the first of these requisites--that it was done secretly and
clandestinely. But of course we have got
to prove all three.
There is in our opinion, a serious question as to whether
they have proven the second element, that is, the zone of operations. They have put in evidence a map or chart of
the Eastern Military Area and the Southern Military Area, and a separate chart
of a particular portion thereof. But
their testimony also discloses that every part of the
So we say that they have not proven that this was in the
zone of military operations.
I must be frank with the Commission and say that their
argument does not end there. They say
that there was a patrol by the Coast Guard along the beach. It appears, however, that it was an unarmed
patrol, and that, therefore, it was
1894
not a military
operation. They sought to fortify that
by putting some military man on from the beach somewhere near Amagansett. They did not offer such information as to
Therefore we say that there was no such zone as
The third requisite is that it must be for the purpose of
giving military information to the enemy.
I do not believe that this evidence remotely shows that. These people came over here, according to the
prosecution’s testimony, for the purpose of sabotage, and not spying. The F.B.I. recognized that to be the fact,
because they used the word “sabotage” both on the witness stand and in every
question that asked the defendants in taking their statements; and you will not
find in all these voluminous statements any other descriptive term used, so far
as I recall. If there are any, it would
be one or two isolated instances which I do not recall.
1895
I confess that we might have
used in one or two instances some other term, but we used the term generally
used, and the agents stated that that is what they considered it to be—an
attempt to commit sabotage.
1896
I am not contending that entering this country for the
purpose of committing sabotage is not a crime.
That does not arise at this time.
It probably arose in the earlier motion.
But we are contending at this time that that is not spying.
There are two other things we have to deal with in that
connection--and I am trying to cover what I think the prosecution may say, for
they may bring up points that I did not anticipate. However, they have put in two classes of
evidence. One that they put in was the
writing on the handkerchief; that is, that there was an address there in
Lisbon, and I do not think that we can properly deny that Kerling and Dasch had
addresses in Lisbon and that under the plan they would, under some
circumstance, transmit some information to Lisbon.
In frankness to the court, I should say further that the
particular fact that the other defendants did not themselves communicate it
would not entirely answer as to them, because a communication through a leader
of a group, if the members of the group knew that it was to be done, would be
tantamount to communication by the mad himself.
The fact that it went through one more step would not mean that it was
not a communication.
We also have from the prosecution’s standpoint the fact
that they were taught or given some instructions in secret writing. That is the unfavorable side from our
standpoint. On the other hand, the
evidence discloses no more that this about this communication, as I recall
it. In that long Dasch statement there
may be something else—I cannot undertake to remember it all—but, as far as I
recall—if I am wrong, I wasn’t to be corrected—the only information that was to
be
1897
given by the leaders was information
as to whether they needed other explosives, whether they needed other
registration cards, and whether they needed other money. If that was the sole purpose—I do not think
the evidence goes any further than that; if it does, I do not recall it right
now—that would not be spying, as we contend.
That is an entirely different sort of defense than it would be to report
on the fortifications, encampments, and military operations of the country. There is no evidence, as I recall it, tending
to indicate that that was over contemplated.
Article 82, as we understand it , as set out in the Hague
Tribunal, in the Rules of Land Warfare, provides that in order to constitute
spying it is required that some information as to our military secrets and
operations be given.
As to the secret writing,
that communication was merely between members of the group, and I think the
testimony shows that without exception.
I believe all the testimony so states.
In the case of certain of the defendants, the evidence is that they did
not even know about the method of communicating.
There is another circumstance that shows that this was not
spying. It was originally contemplated
that some of these people learned radio, but hat was abandoned at the school
because this was to be merely a sabotage group and nothing else.
It is a matter of considerable moment to these defendants
whether this is spying or not. For any
other offense that is charged here, the matter of punishment is discretionary,
but
1898
if these people are properly
tried or convicted upon a charge of spying the sentence is mandatory.
All of us lawyers know that a panel or criminal statute or
provision must be strictly construed; you cannot read a crime into something;
the statute has got to provide for it.
In Article of War 82 when it says, “ as a spy,” “lurking as a spy,” “
acting as a spy,” we have got to take the word “spy” as it is defined by
international law and by our rules of land warfare. We say that, as so defined, it does not mean
coming over here for the purpose of sabotage.
We have not been able to find anything that indicates that that is the
meaning. Yet that is what every F.B.I.
agent and every witness construes this plan to be.
I want Colonel Dowell to submit a few remarks on this very
important question. In concluding my
remarks, however, I wasn’t to say merely that of the three requisites of
spying, one is deception, which certainly existed—we cannot deny that; the
second is some sort of military operations, which we say does not exist in this
case—there is no evidence of it; and the third is intent to transmit military
information to the enemy, and there is no evidence of that. If any one of those requisites is lacking,
then the offense is not properly proves.
It is a vital matter or question in this case. The testimony of the prosecution is in, and
if this charge of spying is found supported by the evidence, it males a
considerable amount of difference. If it
is not, it is a matter, we think, discretionary with this Commission in the
matter of punishment if any of these defendants are convicted.
1899
I have failed to day one thing that I meant to mention,
Charge 3 says, “communicating among themselves.” That is not spying, as we understand the term
to be. That was put in there probably
because they felt that it was necessary so to allege, but the mere fact that it
is put in the charge as an element does not mean that is proved in accordance
with the statement in the Article of War.
They have got to meet the requisite of that, and we say they have failed
in two particulars.
We hope that the Commission will adopt this course: that as
to the German citizens—that is, the five German citizens for whom I am now
speaking—on the second charge and specification they be given a verdict of not
guilty; and that as to all defendants on the third charge and specification,
relating to spying, they be given a verdict of not guilty.
I should like to have Colonel Dowell say a few words.
Colonel Dowell. May
it please the commission: I have two observations to add to what Colonel Royall
has already said. One is that in the
language of Court-Martial Manual the elements of proof required for proving the
crime of spying, as appears under the 82nd Article of War, are as
follows. This appears on page 157 in the
discussion under the heading “Being a Spy.”
This is the proof required for a court-martial and, I take it, the proof
required for a military commission, also, because they are mentioned jointly in
that sane article.
“(a) That the accused was found at a
certain place within our zone of operations, setting clandestinely, or under
false pretenses; and
1900
“(b)—
and this statement to which I
invite particular attention—
“that he was obtaining, or endeavoring
to obtain, information with intent to communicate the game to the enemy.”
The word “endeavoring,” I take it, in this sense is used
the sense of an attempt. There are only
very minor technical differences between an endeavor and an attempt appearing
in the legal dictionaries.
An attempt to commit a crime must be an effort in something
that, if continued to its completion, would result in the crime itself. Discussion appears on page 190 of the Manual
for Courts-Martial, and also the definite statement that mere preparation to commit
a crime does not constitute an attempt.
We submit that in this case there was preparation but no attempt or
endeavor to commit the crime of spying.
The President.
Colonel Ristine have you any remarks to make?
Colonel Ristine. If
the Commission please, I should later like to make a separate motion with
respect to my client.
The President. You
have no remarks on this?
Colonel Ristine. I
have no remarks in connection with this.
The President. The Judge Advocate General
REPLY
TO MOTIONS FOR VERDICTS OF NOT GUILTY
The Judge Advocate General.
May it please the Commission; I do not understand from counsel’s remarks
at the outset whether he has distinguished between his motion on the 81st
Article of War and his other motion; whether he said one
1901
was really a motion on which
he believed he had an n argument to make, while the other was a motion he was
making pro forma, as it were, which he expected this Commission to overlie as a
matter of following earlier rulings.
If it is the latter, which applies to the 82nd
Article of War, I do not want to take up the time of the Commission to discuss
it. But I do want to say at this time
that it seems to me that the argument of the defense is more properly made
coming at the close of his case, going to the merits of the situation, rather
as a motion to bring in a finding of not
guilty at the end of the prosecution’s case. I n the first place, the Manual for
Courts-Martial, paragraph 71 D referring to this says:
“The court will determine the matter
as an interlocutory question. I f there
be any substantial evidence which, together with all reasonable inferences
there from and all applicable presumptions, fairly tends to establish every
essential element of an offense charged or included in any specification to
which the motion is directed, the motion as to such specification will not be
granted.”
The Federal rule is that where the defense moves for a
direct verdict, the view of the evidence and the inferences reasonable to be
deducted there from which are most favorable to the prosecution must be
accepted by the court in determining whether the prosecution has established
its case.
As I say, this argument of defense counsel appears to me
1902
to go to the merits of the
matter rather than to whether the prosecution has made out any case at all, and
that is all that is before this Commission at this time.
With reference to the 81st Article of War, I was
a little surprised at the ingenuity of the argument which says that “whoever”
did not include everybody in the world.
Counsel says he would like to have some case on this point if we have
it. We do not have it, because no such
case has ever come up. But if you follow
counsel’s argument and say that “whoever” applies only to American citizens,
you come to the absurd situation whereby a German citizen in this country,
living here, who might give the dynamite or whatever it might be to these
saboteurs who came over here, could not be tried under the 81st
Article of War. That would be the case,
if, instead of these men bringing this over themselves, some German here had
done it.
In the next place, it says, “whoever relieves or attempts
to relieve.’
In the next place, we do not admit under the evidence that
these two men referred to are American citizens. That is another question, which we shall go
into later. We claim at the present time
that they have lost their American citizenship.
In the same connection, under the 82nd Article
of War, as to spies, it says “Any person who in the time of war.” Going back to the 81st Article, as
to “whoever,” there is no claim on the part of the defense that “any person”
means an American citizen; otherwise it would make the 82nd Article
of War useless. I see no more reason why
there has to be any distinction between an American citizen under the 81st
Article than under
1903
the 82nd Article
of War.
Speaking of that, under the 82nd Article,
counsel has referred to an opinion of the Attorney General, quoted from the
Syllabus, in 31 opinions of the Attorney General 356, which is the case of Waberski, tried on the Mexican Border in 1917 or 1918. That opinion is a printed opinion of the
Attorney General, and it states that under the facts as then set before him:
“A person apprehended upon the
As to that very same case, though not a published opinion
of the Attorney General, under date of December 24, 1919, Attorney General
Palmer said:
“It appears that my predecessor acted
upon the assumption that Witcko, who came from
1904
“In my judgment the above facts, coupled with the further
fact that Witcko at the time of his arrest was found
‘lurking or acting as a spy’, conferred jurisdiction upon a court-martial to
try him under Article 82 of the Articles of War. Of course, I do not undertake to determine
whether the record evidence warranted his conviction.”
As a matter of fact, this man was tried by a general
court-martial found guilty, and sentenced to death. Later, by President Harding, he was
pardoned.
So far as references to Articles of Land Warfare are
concerned, they are based on these records.
But as to clandestine evidence, one such admission did come in. As to the zone of operations, he contends
that is not a zone of military operations because there was not a soldier right
there. We all know that it is impossible
to protect our
1905
With regard to the intent to
communicate, I would like to read you the statement of defendant Kerling—I have
not got the exhibit number here—
“I was also given four or five matches
that were capable of producing secret writing.
No one else in my group got any of these matches. I was told that after we became settled and
located in the
“It is my understanding that he was
given a similar handkerchief containing the mail drop address and the address of
my wife, as above, both written in secret writing, to enable him to communicate
with Germany or get in touch with me in case he needed assistance. I was told to mention Kappe’s name in the
secret text hand writing on the letter sent to this
1906
With reference to the statement of the defendant Dasch—I
have not the exhibit number of his, either—
Colonel Royall. What
page is that statement on?
Judge Advocate General.
Page 79:
“In regards to communication, I have
an undercover address in
I do no think I need read any further on that, if it please
the Commission. It shows the intent to
communicate with the enemy, not only in this country but in
The President. I
think you spoke of two who were
1907
American citizens, whereas
Colonel Royall only spoke of one that was an American citizen.
Colonel Royall. May
it please the Commission, the reason that difference occurs is that my motion
was not directed to the case of the defendant Burger. We announced that we would take that up
separately, and he is the other American citizen.
May I reply very briefly?
I would like to say this in reply to the Judge Advocate General. I referred at the outset of our argument to
certain motions for a verdict of not guilty which we were not seriously
arguing, because the Commission had rued on it.
We referred to charges 1 and 4.
With regard to charge 2, which is the 81st
Article of War, our contention is that it applies only to citizens of the
Under Article 82 it is our contention that there is no
evidence of operating within the military zone of operations and no evidence of
an intent to report military information, and, as Colonel Dowell has said, it
requires something more than a bare intent, in any event. You have to affirmative act toward doing it,
and there is no evidence of an affirmative act to obtain information in this
case-not a word. It does not even come
to the dignity of an attempt to spy.
Colonel Dowell. May
it please the Commission, at this time I would like to add very specifically
the portions of the Manual mentioned before, by citing exactly, under the 82nd
Article of War, the element of proof, which appears at the close of paragraph
142 on page 157 of the Court Martial Manual.
This relates to the charge under the 82nd Article
1908
of War. Under elements of proof, the second one
requires that, before the offense has been committed, he was obtaining or
endeavoring to obtain information with intent to communicate the name to the
enemy.
The other one is specifically on page 190 of the Court
Martial Manual, under the subject of, “Attempts. Discussion,” the third sub-paragraph, in
which the language is as follows:
“Soliciting another to commit a crime
is not an attempt; nor is mere preparation to do a criminal act.”
We are trying to assert here or submit the proposition that
here has been no evidence submitted under article 82 in support thereof, the
crime of spying except preparation.
There was preparation, we frankly admit, that might have
resulted in spying, but here was nothing more than preparation. There was no act in that at all, and I think
it will be admitted by the prosecution that in the schooling that all these
people had received in sabotage there was no schooling in the matter of
spying. There was preparation which
would have made it possible, but no overt act beyond that, as required.
The Judge Advocate General.
May it please the commission, I think it would clarify the situation if
I said this, in view of the argument of defense counsel, so far as the proof of
the charges under the 82nd Article of War are concerned, where he
refers to the last paragraph of Section 142, and sates that two essentials are
required:
“(a) That the accused was found at a
certain place within our zone of operations, acting clandestinely, or under
false pretenses: and (b)”—and this is what they
1909
emphasize—“that
he was obtaining, or endeavoring to obtain, information with intent to
communicate the same to the enemy.”
This is the end of the discussion of the 82nd
Article of War, which is headed, “Being a Spy.”
I would like to read the third sub-paragraph of that
article:
“It is necessary to prove an intent to
communicate information to the hostile partly.
This intent will very readily be inferred on proof of a deceptive
insinuation of the accused among our forces,” which is here, “but this
inference may be overcome by very clear evidence that he person had come within
the lines for a comparatively innocent purpose, as to visit his family or that
he has assumed a disguise in order to reach his own lines.
“It is not essential that the accused
obtain the information sought or that he communicate it. The offense is complete with the lurking or
dissimulation with intent to accomplish these objects.”
That we claim is fully proven in the evidence submitted by
the prosecution.
The President. Is
there a desire on the part of any member of the Commission for clarification on
the part of the other side? The
Commission will close.
(The commission was then closed. When it reopened the following
occurred:)
1910
The President. The
Commission is open.
The first motion of the counsel reporting Charge 2, violation
of the 81st Article of War, is not sustained.
Referring to the second motion, regarding Charge 3,
violation of the 82nd Article of War, the motion is not
sustained.
Colonel Ristine. If
the Commission please, on behalf of Mr. Dasch, I would like to request the
Commission at this time to find a verdict in his favor, of Not Guilty, with
respect to all of the charges and specifications, and I would like to make a
brief argument respecting the matter.
ARGUMENT
OF MOTION OF DEFENDANT DASCH FOR VERDICT OF NOT GUILTY
Colonel Ristine. At
the outset, if the Commission please, I think I would like to propound a
question in order that the Commission might have the interrogation in mind as I
proceed with my argument. My query is
this: Is it possible for a German subject, who is within
I say it is possible under those circumstances for that
German subject to come to the United States with a group, such as entered the
United States on the Long Island coast, and by any process of conduct
thereafter, convince a commission or a court in this country that he did not
have the intention, when he left Germany, to carry out the project intended to
be carried out by the group with which he came
1911
to the
In connection with that question I wasn’t to briefly relate
the facts that have been disclosed to this Commission with respect to the
conduct of Dasch.
The prosecution offered parts of a long, voluminous
interrogation, and then when we got the entirety of the parts, here is the
picture that we have:
Dasch had what might be termed, with a warring nation, a
“soft job.” His task was the task of
listening to radio broadcasts from the United Sates, broadcast in English,
propaganda broadcasts, and then translating those broadcasts, in so far as they
had to do with military or allied subjects, intro German. He said in connection with the work that he
listened at other times to many others broadcasts, but he became very dissatisfied
with Hitler and Hitlerism and Nazism and very dissatisfied with the way they
were treating all of the countries and the subjects thereof that had been
conquered, and he wanted to get away from there in order to fight all of that,
because it was contrary to all of his concepts of that which was right and
proper. He said that the only thing that
offered itself to him was the opportunity to come back to the
It is true that it is very difficult to find much of any
corroboration within
1912
one else in
Under those circumstances how could a man make it know
clearly what his intentions were as long as he was in
But if the Commission please, it does crop out that Burger,
in his statement, corroborates Dasch with respect to that matter. Burger in his statement says that Dasch came
to the classes late, did not seem to take an interest in them. When he should stand and give the Nazi salute,
he had one hand in his pocket, and that his heart was not in it, and that in
explanation he said he just could not enter into the thing enthusiastically
when he abhorred the whole of it.
That is just one little straw, but that straw shows the way
the wind is blowing. Dasch in his
statement relates another instance with respect to Burger. Dasch knew that Burger, because of his sympathy
for some of those downtrodden people over there that the Germans had mistreated,
had exposed their cause, had taken a position against the mistreatment of these
people, and as a result thereof he had
spent 17 months in a concentration camp and bore the scars of mistreatment.
They sent him down to this school to give him a chance to
rehabilitate himself; and one occasion he wanted to unbosom
his innermost thoughts to Dasch, and he just got as far as saying those “ s.o.b.’s “ or whatever term he used, had treated him
terribly in the concentration camp, and he wanted to continue, and Dasch said, “Stop. Don’t say anything more. There will be a time; a time will come when I
will call this subject up again, but promise me one thing now. Do not say
1913
anything further.”
Of course, if the Commission please, if that statement had
been overheard and Dasch had not immediately reported it, it probably would
have resulted in the summary execution of the two.
Now, let us have that situation in mind when you consider
the conduct of these people after they came over to this country.
They effectuated a landing.
The boat captain, before they effectuated a landing, had given them
explicit instructions that if they ran into a patrol or any other force in
effectuating the landing they were to overpower whatever that force was and
send them back to the submarine.
What did they run into?
They ran into one Coast Guardsman, young and inexperienced, unarmed, by
himself, on a foggy night when you could hardly see 25 feet away. And what does Dasch do? There is no controversy about what Dasch
did. Dasch approached that man in rapid
steps. He instructed the two men who wee
on the beach yet, from the submarine, to return to the submarine. He engaged in conversation with this
boy. Burger came up during the
conversation and addressed some remark to Dasch. There were two within a few feet of the Coast
Guardsman, who was unarmed. Two more
were within a very few feet more, because you could see them in the fog. I think it was described that you could only
see about 25 feet. Still Dasch elects to
do what? To carry out the purpose,
gentlemen of this Commission, for which he came over here? To do no violence, not to harm this boy?
Then the boy suggested that he accompany him to his headquarters,
with this material on the beach. If
Dasch had gone
1914
he would not have had any
opportunity then to assume the role of a voluntary aide and assistant to this
government, because he was apprehended landing with all of these
explosives. So that, in order to protect
himself in the purpose for which he came over, it was necessary for him to do
something else, and he thought upon the subject of giving the Coast Guardsman
some money to forget the incident. He
even thought he had accomplished that. His statements to the F.B.I. agents illustrate
that he thought he had accomplished the purpose, so far as the Guardsman was
concerned; and the F.B.I. did not disabuse his mind of that thought. But you will find in that statement that his
conscience hurt him, because it had become necessary, as he thought, for him to
corrupt that young, innocent boy by
offering him money and his having accepted it in order to forget this incident
which was clearly within his duty to report.
Now, what happens?
They go on to the station, and we have it in evidence here that Dasch
was not particular about concealing the fact that they had made a landing, or
particular in concealing everything that was buried there. Burger, on the contrary, purposely left
things in the beach and did not bury the things which he had been entrusted to
bury so that they could not see part of them sticking out.
Burger disclosed his hand to that extent, because Burger
was satisfied, and says so in the statement which he gave because of incidents
that had occurred in the school, that Dasch was not a Nazi enthusiast, such as
he was appearing to be in the school; and Burger, who had suffered 17 long
months in a concentration camp and who still bears the scars of the
1915
mistreatment, was not the Nazi
that he was purporting to be, but he was desirous of getting out in order that
he might be more effective.
They go to a station early in the morning, and Dasch
related in his statement that he then debated whether he would go to the
restaurant that was lighted up across the street, and put in a long distance
call to the F.B.I. and immediately report the matter; but the close proximity
of the other three, Burger and the other two- and Dasch at that time was not
positive about Burger, although he thought Burger felt the same way he did- the
close proximity of the other three dissuaded him against attempting to put in a
long distance call there, because if they learned about it, then of course the
effectiveness of it would be immediately negative
So they go into
They get to
1916
valuable information which he
wished to give; that he was coming to
It also appears that he had ordered some clothing, and
alterations of the clothing, and he could not get the clothing until Thursday,
and therefore he was coming down Thursday or Friday.
He came down, and what did he do? He brought $82,500 with him in a brief case.
Mark you, he had advised some of the others to put away in
some safe place part of the money which they had in order that if they were
apprehended and put into camp or prison their loved ones would have something,
or they would have something when they came out; knowing full well when he gave
them that advice that it would not be long until they would be apprehended,
because of the course which he intended to pursue.
Somebody might say that Dasch was a chiseler. Did Dasch put away any of the money which he
had? Not one thin dime. He brought it all with him down here; and the
fact that he went to one of the public hotels in New York and to the Mayflower
Hotel down here, the reservation for which was made before he left New York,
certainly discloses that he was moving openly and above-board in every movement
that he made, that he was not lurking around any places where he could not be
found or located.
When he arrives here he arrives late one evening. The
1917
next morning he called the
Bureau of Information and wanted to know to whom it would be proper to divulge
some matters of military information which he desired to divulge. He was given two numbers. One was that of Colonel Kramer, who was, I
think, in the Military Intelligence, and the F.B.I. number. And somebody in
He called Colonel Kramer first. Colonel Kramer was not in, and he left word
for Colonel Kramer to call him back at the Mayflower Hotel. He then called the F.B.I. and got Mr. Traynor on the phone, and Mr. Traynor
suggested 11 o’clock. Dasch suggested an
earlier hour,. If possible, and it was moved up to 10:30.
Mr. Traynor agreed, in order that
there may be no trouble in Dasch finding the place, to send somebody over to
accompany Dasch to the F.B.I. headquarters.
That was done.
Mr. Traynor has related that in a
period of five or six days of conference and interrogation they had checked
part of the statements, and everything they had checked was accurate and
correct. He said they had not checked
all of them, but in so far as they had checked in that long document it was all
true. He says he told Dasch that he
believed him, believed that he was honest and sincere. Now he says that something occurred afterwards
to cause him to waver; and that something, if the Commission please, as related
by him, had to do with the agreement by which Dasch was to enter a plea in the
court in New York and take punishment with the rest and then procure a
Presidential pardon within six months.
1918
The first witness was sure
that the promise of the Presidential pardon was specific and definite. The second witness stated that it was merely
an effort to recommend and procure such a pardon with six months mentioned as the
probable duration of the incarceration; so that I take it, if the Commission
please, it dose not matter which version we accept; we can agree on the
proposition that it was agreed all around that a six months incarceration
should suffice, and that was mainly for the purpose of protecting his father
and mother in Germany.
1919
On Sunday morning following the agreement, with the
headlines in the papers, Dasch withdrew his consent to enter the plea. It was not surprising, if he was going to
enter the plea to keep the information from getting back to
As I recall it, that was the incident which caused Mr. Traynor to have some doubt about the sincerity of
Dasch. But I think we will all have to
agree that there is nothing in this record to show that the prosecution has not
the burden which is imposed upon it to prove beyond a reasonable doubt that
Dash is guilty of having come over here for the purpose of committing any act
of sabotage or any act of law violation.
Let us view a few other exhibits. Dasch left a letter for Burger in the hotel
room, or with the clerk, to be delivered to Burger when Dasch left for
Let us consider the second letter. After the phone
1920
calls had been perfected in
Washington, Dasch wrote a second letter to Burger, in which he advised him that
he had contacted the proper parties and that he would report further to Burger,
admonishing Burger to keep track of the other two and to remain in the room as
much as possible and not to run around and not to talk, saying that burger
would hear from Dasch of the F. B. I.
While Burger was in protective custody, the F. B. I.
intercepted that letter. I have no
criticism of the F. B. I. for intercepting that letter. I think it was the proper thing to do. They intercepted the letter because they
thought it would contain the innermost thoughts and secrets of Dasch, and if
those thoughts conflicted in any way with the statements he was currently
making, they would know about it. But
the letter corroborates Dasch in every particular.
The second letter was written by Dasch to Burger after
several days of conference, but that letter was never mailed. It was delivered to a member of the F. B. I.
and was never mailed but placed in the F. B. I. file. However, that letter, if the Commission
please, is also consistent with and corroborates Dasch’s contention that he
never had any thought n his mind of committing any act of sabotage but solely
came over here for the purpose of getting away from Germany, where he could not
act, in order that he might act effectively over here.
The question arises, what will the Commission do under
those circumstances? I agree with the
argument of counsel on the other side that if there is substantial evidence
here to show the guilt of Dash, he should not be acquitted. But I
1921
say to this Commission that
if you view this testimony in the most favorable light for the prosecution, you
will inevitably say that there is a very serious doubt in your minds as to
Dasch’s guilt, if you do not go even still further and say that you are
convinced of his innocence. The burden
is upon the prosecution to prove his guilt beyond a reasonable doubt. The burden is not upon him to prove his
innocence. I believe he has met that
burden in this case. I believe he has met
the burden of proving his innocence. But
it is not necessary for an acquittal that we meet such a burden. All that is necessary is that there be
reasonable doubt in the minds of the Commission as to his guilt; and if there
is he is entitled to it and to an acquittal.
We feel at this time, at the close of the prosecution’s
case, that Dasch is entitled to an acquittal with respect to every count.
The Judge Advocate General.
May it please the Commission—
The President. The
Judge Advocate General.
REPLY
TO NOTIONS OF DASCH FOR VERDICT OF NOT GUILTY
The Judge Advocate General.
Counsel for the accused Dasch has made a very excellent argument if it
were made at the conclusion of the evidence and not at the conclusion of the
prosecution’s case. It is not a question
of the prosecution’s proving this accused’s guilt beyond a reasonable doubt for
the purpose of a motion for a finding of “not guilty” at the end of the
prosecution’s case; it is simply for the Commission to decide, as I said before
in replying to the other arguments, whether or not the evidence submitted by
the prosecution, taken in its most favorable aspect,
1922
raises any presumption of
guilt; or, as stated here, must be accepted by the Commission in determining
whether the prosecution has established its case.
You have here, so far as this argument is concerned, the
confession of the accused Dasch. With
reference to that confession, I just want to read one paragraph from Wharton’s
Criminal Evidence, Section 606, Pages 1012 to 1015:
“…It is also well settled that if a
confession is made under such circumstances as to authorize its admission in
evidence the accused is entitled to have the entire conversation, including any
exculpatory of self-serving declarations connected therewith, also admitted. However, it is for the jury”—
in this case the Commission—
“to
say what weight shall be given to the several parts of the statement, as they
may believe what part which charges the prisoner and reject that which tends to
exculpate him”.
It will be the duty of this Commission upon the completion
of all the evidence in this case to consider this confession and to take
whatever part of it you wish-all of it if you think it is credible, or you may
reject any exculpatory statements made in such confession.
But that is not the duty of this Commission at the present
time under this Article. The question is
simply, from the confession and the evidence produced, taken in its most
favorable light, has the prosecution made out a case and submitted sufficient
evidence to connect this accused
1923
with the case? I submit that upon the facts it is not
necessary to argue the various details that have been brought up by counsel in
their arguments. The question is simply,
as I have said, has the prosecution produced sufficient evidence which, taken
in its most favorable light, would establish a prima facie case? That is all that is involved in this present
argument.
The President. Mr.
Attorney General?
The Attorney General.
I do not want to add anything unless the Commission should desire to be
enlightened on any point.
The President. Is
there any point on which the Commission wishes enlightenment? There seems to be none.
Colonel Ristine. If
the Commission please—
The President.
Colonel Ristine.
Colonel Ristine. If
the Commission please, just in answer to the argument of the prosecution, it is
my contention that the evidence to date, taken in the most favorable light for
the prosecution, does not make out a case against Dasch; in fact, the
prosecution's evidence with respect to the last F.B.I. agent who was on the
stand only created a doubt in his mind about the truthfulness of Dasch's
statement. Furthermore, the F.B.I. agents
who proposed a plea of guilty with six months' incarceration certainly were
unanimously agreed that Dasch was not guilty, or else they could not have made
such a proposal, if the Commission please.
I saw that taking it in its most favorable light against
Dasch--taking everything in the most favorable light against
1924
him—the prosecution has not
made out a case at all.
Colonel Royall. May
it please the Commission: As announced at the outset, we desire to make a
motion on behalf of the defendant Burger.
I want to go into that case in detail.
Colonel Dowell and I feel that at this stage of the proceedings,
adverting to the rule read by the learned Judge Advocate General, we do not
object to that test being applied to the evidence adduced in our case. We are confident that an application of those
principles to the Burger case should result in a dismissal of all charges
against him.
It is quite a thankless task to address this Commission on
so many subjects, as to none of which we seem to be very successful. I am not saying that in any way critical of
the Commission, because my confidence is unshaken that the Commission has given
to every question careful and painstaking thought. The mere fact that my opinion and Colonel
Dowell’s opinion may differ from that of the Commission does not, of course,
shake our confidence in the Commission’s integrity and willingness to hear this
matter discussed.
I should like very much to defer the presentation of the
Burger argument until tomorrow morning.
I do not want it split in two. It
is impractical to finish it this afternoon, since it is almost the closing
hour. We have gone through the evidence
of every witness so far as it relates to Burger. We have analyzed it. We want to present it in full to this
Commission.
There are a number of reasons why we should like to do
so. It will take probably as long as,
perhaps longer than,
1925
Colonel Ristine’s
presentation, which took 45 minutes, to present our view to you, and I would
rather not start on it this afternoon.
The President. We
have the case before us now on the motion with regard to Dasch only. Have you anything further to add, General,
not with respect to Burger but with respect to the Dasch motion?
The Judge Advocate General.
Not at this time.
Colonel Royall. I
have this in mind. I did not make this
point clear. There are a number of
similarities between the Dasch case and the Burger case. There are some dissimilarities. I did not know whether or not the Commission
would want to defer decision on this point.
The President. Mr.
Attorney General?
The Attorney General.
I should think it was appropriate, unless there was some other reason
for it, to have the motion of Colonel Ristine in behalf of Dasch decided
now. There may or may not be
similarities, but the Dasch situation has been put before you at great length,
very ably, and in great detail. I should
think it would be appropriate to have that decision made first. I think the Burger case is different. In my opinion, the Commission should take up
its decision upon each case while it is still hot. However, it is discretionary with the
Commission whether or not you will do that, and it is a matter which I should
not want to argue at great length.
The President. The
Commission will close.
(At this time the Commission was closed. When it reopened, the following occurred:)
1926
The President. The
Commission is open.
The Commission will not make a ruling at this time on the
motion of counsel for the defendant Dasch but will adjourn until ten o’clock
tomorrow morning, when it will hear the defense counsel Colonel Royall in the
particular case of the defendant Burger.
We will adjourn until ten o’clock tomorrow morning.
(At 4:30 o’clock p.m. an adjournment was taken
until Tuesday July 21, 1942, at 10 o’clock a.m.)