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Cover Sheet
STENOGRAPHIC
TRANSCRIPT OF PROCEEDINGS
Before the
MILITARY COMMISSION TO TRY PERSONS
CHARGED WITH
OFFENSES AGAINST THE LAW OF WAR AND THE
ARTICLES OF WAR
________________
Saturday, August 1, 1942
Volume
XVIII
Pages
2880 to 2967
2880
CONTENTS
Saturday, August 1, 1942
ARGUMENT ON BEHALF OF DEFENDANT DASCH,
continued
By Colonel Ristine 2882
ARGUMENT
ON BEHALF OF THE DEFENCE
By
Colonel Royall 2887
CLOSING ARGUMENT ON BEHALF OF THE
PROSECUTION
By the Judge Advocate
General 2929
By the Attorney General 2953
--ooOoo--
2881
STENOGRAPHIC
TRANSCRIPT OF PROCEEDINGS
Before the
MILITARY COMMISSION TO TRY PERSONS
CHARGED WITH
OFFENSES AGAINST THE LAW OF WAR AND THE
ARTICLES OF WAR
________________
Washington, D. C.
Saturday, August 1, 1942
The Military Commission appointed by
the President by order dated July 2, 1942, met, in room 5235 Department of
Justice, at 9:30 o’clock a.m., to try for offenses against the Law of War and
Articles of War, the following persons: Ernest Peter Burger, George John Dasch,
Herbert Haupt, Heinrich Harm Heinck, Edward John Kerling, Herman Neubaur,
Richard Quirin and Werner Thiel.
PRESENT: Members of the Military Commission, 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:
Major General Myron Cramer,
The
Judge Advocate General,
Colonel F. Granville Munson,
Colonel John M. Weir,
Colonel Erwin M. Treusch,
Officers
of the Judge Advocate General’s Department
As
Provost Marshal:
Brigadier General Albert L. Cox.
2882
As
Counsel for the Accused except George John Dasch:
Colonel
Cassius M. Dowell,
Colonel Kenneth Royall.
As Counsel for the
Accused George John Dasch:
Colonel Carl
L. Ristine.
- - - - -
PROCEEDINGS
The President. The session is open. Colonel Munson. If the Commission please, the eight
defendants are present and the reporter is present. The staff of the prosecution is present
except that Mr. Howe is still absent; Mr. Cox is temporarily absent, and the
Attorney General is absent, but request that the Commission proceed until his
return a few moments hence.
Major Thurman of the prosecution is
also temporarily absent.
As to the defense staff, Major Stone,
Captain Hummell and Captain Bruton are absent.
The President. The defense may proceed.
Colonel Ristine. May I ask the indulgence of the Commission
for about five minutes longer to bring up one matter which I should have
touched on yesterday?
The President. We will be very glad to have you do so,
Colonel.
ARGUMENT ON BEHALF OF THE DEFENDATN DASCH
By
COLONEL CARL L. RISTINE — Resumed
Colonel Ristine. In my concluding remarks yesterday, if the
Commission please, I said something respecting the failure of the F.B.I to say
anything from the witness stand
2883
respecting
a recommendation on their part so far as Dasch was concerned. I now recall that there is in the record that
which might be termed as a recommendation, so far as the F.B.I. is concerned,
and I think, in fairness to them, that I should mention, it.
On page 541 of the record I asked this
question in cross-examination of one of the F.B.I. agents; I think it was Mr.
Wills (reading):
“Q And
was it stated as a part of that proposal” — This has reference to a proposal
that was made to Dasch about some proceeding in the Federal court —
“Q Was
it stated as a part of that proposal that after his plea of guilty he should
not divulge anything with respect to the agreement that was made, and that
after the case had died down and for about, say, three to six months, the
F.B.I. would get a Presidential pardon for him?
“A That,
in substance, is true.”
And
on the next page, 542:
“Q Would
you tell the Commission what was said in favor of the proposal, if anything,
respecting his father and mother?
“A The
proposal was given to protect the father and mother and relatives in
German-occupied.”
Then
the Attorney General interjected:
“To protect them from what?”
And
the witness said:
“From harm.”
2884
And then this question, skipping a
few, was asked:
“Q Could
you tell us what statements were made to Dasch by you and Mr. Johnstone in
asking him to agree to that proposal?
“A The
exact wording I do not recall; but he was told that he should have some
consideration for his father and mother and relatives over in
The Attorney General cross-examined
him with respect to that. My questions
in cross-examination were a little bit leading, but the Attorney General
examined him, and we find that examination on page 545, and there is this
question by the Attorney General:
“Q And
what did you say to him with reference to if he would plead, what would happen,
what was told him exactly?
“A As
I recall the substance, he was told that if he appeared in Federal court and
entered his plea of guilty and be sentenced along with the other defendants,
that after a period of about six months efforts would be made to get a
Presidential warrant, or that he would get a Presidential warrant — a President
pardon.”
I am skipping a few questions. Then this question was asked by the Attorney
General:
“Q Did
anybody promise him anything?
“A Yes,
sir. Mr. Donegan, on the afternoon of
Saturday, June the 27th, told Defendant Dasch that he would be
indicted and appear before a Federal court, that at that time he should enter
his plea of guilty, or if
2885
he
entered his plea of guilty and he was sentenced to prison along with the others
that through the F.B.I a Presidential pardon would be obtained for him.”
That is the witness Wills.
Now, let us see how Dasch understood
it. Colonel Royall cross-examined Dasch
respecting that matter, and it appears on pages 2571 and 2572 of the
record. I will read from about the
middle of page 2571:
“Q George,
when was this agreement made that you would plead guilty and that after some
period — six months, I believe it was — you would get a Presidential
pardon? When was that agreement made
with you?
“A On
Saturday night, June 28, I think was the date—June 27.
“Q At
that time you had already given them most of the facts about the case, had you?
“A Yes,
sir, I had been with the F.B.I from 11 o’clock or 10:30 in the morning form
Saturday—that was the 18th, then—no; we are speaking of July, not
June—from Friday the 19th up until Saturday the 27th.
“Q The
27th?
“A That
is right.
“Q At
the time they made that promise to you, therefore, they had had eight days
which to talk with you and discuss the matter?
“A Yes, indeed, sir.
“Q What exactly did they promise you?
“A They took me downstairs into the room —
“Q I
did not ask you where they took you; I just asked you what they promised you.
2866
“A They
said to me, George, the best way for you — for your case is to go and plead
guilty.”
“So,
I have told them, ‘to plead guilty for what?’
“Well, you plead guilty, and you have
to go in front of court, and now is your time to act. This is the biggest act in the world. You have to stay there and take the
punishment and don’t say nothing. Don’t
say, “I have been to the F.B.I”; just take it; that is all.’
“Then you go to prison, and after six
month or three months’ – Mr. Traynor said it might be only three months; the
others say it might be only six months — then I would receive a Presidential
pardon; and to the fact — they then played up the fact of my mother and the
security of my parents, I am willing to do that,’ so I agreed to that.”
You will recall that Mr. Donegan took
the stand and, in explanation of it Mr. Donegan said that there was a promise
to use their influence to obtain a Presidential pardon, and he also said that
six months was discussed and mentions as the probable time when it would be
accomplished, although Mr. Donegan said there was no absolute promise of a
Presidential pardon.
I call your attention to that because
I do not want to be unfair to anybody. I
said that the F.B.I. should have made some recommendation. That is in the record, ad I think that is a
very candid statement of their estimate of the guilt or innocence of Dasch.
(At this point the Attorney
General entered the court room)
2887
In other words, as I understand it,
the only reason for his entering a plea at all was to protect his relatives in
I just submit that in explanation and,
possibly, apology for my statement about the F.B.I., and for your
consideration.
The President. You may proceed, Colonel Royall.
ARGUMENT IN BEHALF OF THE DEFENCE
By
COLONEL KENNETH C. ROYALL
Colonel Royall. If the Commission please, I desire this
morning to talk about the defendant Haupt and finally the defendant Burger, and
then call your attention at the conclusion to some general principles; and my
argument will be brief.
The President. I would like to inform
defense counsel that they have all the time in the world in which to present
their case.
Colonel Royall. That is very considerate of the Commission,
and w had assumed that that would be the attitude of the commission. However, I do not think it is going to take
very much time to cover the points that I think should be covered.
In connection with the matter which
Colonel Ristine brought up, since it is fresh in the minds of the Commission,
it suggest to me two things that may be material in this case so far as one of
more of the other defendants are concerned.
This Commission, of course has the
responsibility of determining the guilt or innocence of these men and what
punishment should be imposed upon each of them separately in case they are
found guilty.
2888
The suggestion of the F.B.I as to the
plea of guilty was not made to this Commission; it was made in connection with
a civil court. Without meaning to be
critical, because everybody realizes that the F.B.I. had an objective, that it
wanted to find out as much as it could about this whole situation, not only
about these defendants but about everybody else, I do not think that sort of a
suggestion to a prisoner is quite the thing to do, in any event; and certainly
the attitude of letting a court act on something in the hope hat somebody above
them will take certain action is not consistent with either the dignity of the
court or the dignity of this Commission.
But I have no fear that this Commission will take the attitude that
whatever is done is subject to review and it does not make any
differences. You have given such careful
attention to this matter; you have studied it obviously with such diligence
that I know that that is not going to be the attitude of the Commission.
I think, however, it very material
that the F.B.I was of the opinion that Dasch ought not to have any material
punishment. They had studied the case
very carefully. It was brought out on
cross-examination that they had studied it for eight days. They had the statements of practically all of
the defendants at the time, and they knew they thing from top to bottom, and
they certainly were diligent on behalf of the Government and they felt that
Dasch ought not to be punished in any material degree at that time, to such
extent that that promise was made, according to Mr. Wills.
That is material principally to the
defendant Burger, because the evidence disclosed beyond question that they were
2889
at
the time that Dasch talked to the F.B.I, acting together and therefore what was
said about Dasch would necessarily include Burger. If the F.B.I, as a law-enforcement agency
thought that Dasch ought not to be punished more than six months, then it
certainly should have thought that Burger should not be punished even that
much, we say.
There is one other thing about it to
which I wish to refer.
There have been some little
inconsistencies between the statements of various of the defendants. We cannot run away form that fact. There are some different between their statements,
and in some instances differences between their statements and what they said
on the stand. There have been some
little conflicts, usually in minor matters, between the defendants
themselves. But that is not confined to
the defendants.
I have a list, which I would be glad
to give to the Commission, of thirty-seven inconsistent statements made by
members of the F.B.I in this trial.
Of
course I do not want to get in to a trial of the F.B.I. We are not trying to do that;
and
this is not said with the idea of criticism.
But human beings are such that in telling a story, seven or eight men,
which is about the number of F.B.I men who testified, there are always some
little inconsistencies, differences in recollection and differences in
understanding. I think one of the most
typical is the one that has been mentioned.
The Attorney General asked the witness Wills:
“You mean, there was a
definite promise?
2890
He said, “Yes, a definite promise”
There is an F.B.I. man saying that,
that was not in response to Colonel Ristine’s question; it was in response to
the Attorney General’s question.
Then Donegan goes on the stand and
says that there was no promise.
That does not mean that either one of
these men is untruthful or subject to censure.
It just means that they understood it differently. But if that can occur with an agency as
careful as the F.B.I certainly is, it can occur with men of this type.
So I do not think that too great
weight should be given to the fact that maybe between some of these defendants
there are some inconsistencies or difference in understanding of just what was
said and done.
I do not want to burden you with
illustrations, but in the case of the defendant Thiel or Kerling – I forger
which one – one of the agents said that after Kerling made a statement about
being struck, Donegan took him off by himself in a room, and when he came back
he retracted it, and Donegan said he was never alone with Kerling.
But that does not mean that Traynor
was deliberately telling a story; it just means that they remembered it a
little differently; and I have got 37 inconsistent statements written
down. By that I do not man that we are
trying the F.B.I; that is not my purpose. It is only to illustrate that even
honest and competent men, as the F.B.I. men clearly are, can have differences
in recollection even when they keep a minute record of it themselves.
2891
Before
I come to Haupt and Burger; I asked the other defendants if there were any
matters that I did not mention to the Commission that they thought should be
mentioned. The only things that have
been suggested to me are these, that in the case of the defendant Neubauer he
wants attention called to the fact that his wife is an American citizen, the
fact that she never became a German citizen.
That is an indication that they always had the idea of living in
Another thing tat there has been some
difference in recollection of the details in the category that I discussed a
moment ago as to whether these men actually became members of the German army
or not. Of course they were dealt with
separately. Some of them admit that they
did, some of them said they never were.
That may have been a difference in understanding, just like it was
between Mr. Wills and Mr. Donegan.
However, regardless of that, one thing is certain; they were all acting
under orders in some capacity. They were
more or less forced to do it as either member of the army or in some other
capacity where they had supervision over them.
Now, coming to these two defendants,
the testimony of the defendant Haupt would, in my opinion, be convincing beyond
question to any court or commission, but for two circumstances.
2892
One was when the other defendants
followed him on the stand and all contended that they also wanted to come to
It is our view that this being a
judicial body, it is absolutely essential that each case be tried upon the fact
of the case; and where there is a difference in fact that that be given effect
in the matter of both convictions and punishment.
I have prepared — it is very rough, because it was just
simply done for the purpose of my own argument — I have prepared and will
present to the Commission for use or nonuse, as the Commission may elect, and
outline of what we think are the salient facts as to each defendant with
reference to page numbers or the record, so that if you want to refer to it in
considering any defendant, it may make it more convenient. If you do not want to use it for any purpose,
we of course, will use it.
The President. Do I understand that this is to be offered
in evidence?
Colonel Royall. No,
sir. It will be offered more or less as
a summary of the argument; and if the gentlemen of the prosecution think it is
inappropriate, then the Commission can decide that. That is the reason why I bring it up at this
2893
time. It has references to page numbers. It is just a copy of what I am using as notes
in my argument, with the page numbers on it.
I made these copies for this reason;
The Commission once or twice during the hearing suggested that perhaps some
memorandum pointing out page numbers or citations — for example, in the case of
the statutes — would be helpful. It is
frequently appropriate that some form of brief be handed up in connection with
oral argument. We do not want to prepare
any brief, but this is merely a reference to the pages with the data
connected. Of course, the other side
will be furnished with a copy, too. But
when the time comes, if the Commission does not think it ought to consider
this, we will understand that.
I know that it is appropriate. I know that in any court you can always hand
to the court a summary of either the factual or the legal situation for
reference to the evidence. I do not know
of any reason why it should not be appropriate here. But I shall not argue that question to the
Commission; I leave it to them to decide.
The Judge Advocate General. May it please the Commission –
The President. The Judge Advocate General may comment.
The Judge Advocate General. It seems to me that it very
inappropriate. All the evidence has been
submitted, the facts have been presented to the Commission, and the Commission
has access to the record. References are
made there. This is simply putting
another argument into the Commission’s hands after the Commission has recessed to make its findings.
Colonel Royall. I merely say I answer
to that that the
2894
same
thing is true of any brief in any court.
Of course it is not evidence; it is merely a reference to evidence. It is not worth anything unless it is correct
and correctly refers to the evidence.
What I am going to do, may it please
the Commission, is not offer it in evidence, not insist on it in any degree,
but merely tender it. If the Commission
desires to use it, all right; if the Commission desires to ignore it, all
right.
The President. We shall be very glad to have you tender it.
Colonel Royall. Yes, sir.
A Member. I think you might use it as part of your
argument. You might read it or do
anything else with it you please. You
want to use it in that way and offer it; is that right?
Colonel Royall. Yes, sir, as part of my argument. But I don not want to get into any argument
with the Commission about that. If the
Commission does not want to consider it, certainly that is satisfactory to us.
The President. You may tender it as part of your argument,
and the Commission will give an opinion on it.
Colonel Royall. May it please the Commission, I was talking
about the defendant Haupt. The distinguishing features between the defendant
Haupt and some of the other defendants on the question of whether this story of
wanting to return to America is correct arises from the fact that he made that
statement in his written confession to the F.B.I, and he made it in exactly,
with practically no variation, the same substance as he testified on the
stand. He made that statement
2895
when
he was not with any of the other defendants,
He had not seen any of the other defendants. He did not know what they were going to say;
and if he had, it would not have helped them, because none of them said
anything similar to what he said as to their case, although all of them
corroborated his story to a considerable extent. Therefore, that should be given
consideration.
The President. In what particular? Would you refer to it again explicitly?
Colonel Royall. The Haupt confession states that he left here
because of some difficulty with a girl; that he left to go to Mexico; that he
went there thinking he might get work and could go to Central America; that he
ran out of funds; that he had already applied for a passport to Central
America. Continuing his story, which I shall go into in a little more detail,
he went to
He was subjected to the most thorough
cross-examination of anyone who has been offered as a witness, except possibly
the witness Dasch and the witness Burger.
In that cross-examination as I recall it, the witness Burger. In that cross-examination as I recall it, the
prosecution did not develop a single inconsistent statement, either
inconsistent with his direct
2896
examination
or inconsistent with his statement given to the F.B.I. upon apprehension. There may have been some difference in
wording, but the only thing that they tied to at all was the fact that he said
that when he registered in
It turned out that Haupt did put a
street address where he had lived, the last place he had lived in
He said he left here because of some
difficulty with a girl. We are not
trying him for that. He has probably
proved himself guilty of some unlawful or immoral conduct in connection with
Miss Stuckmann. She did not say that he
promised to
2897
marry
her, but he got in trouble and skipped out.
That is a bad thing to do, but it happens everyday. The girl, of course, deserves sympathy. She was a widow, and it was unfortunate. But that has happened many times before. It is not terrible crime. If he had seduced her under promise of
marriage, it might have been more reprehensible.
She became pregnant, and he did what
many other 21-year-old boys would have done: he left and went down to
He was a skilled worker. He told the Government ordnance men where he
was going, and he went there. He went down and tried to get work. The ordnance report is on of the strongest
things in his behalf. There is a report
we did not know about and never saw before.
We did not know what was in it.
He did not know. He could not
have know it until it came into court.
Yet it corroborates him in every particular. It was written by an officer last year. Haupt never had any knowledge of what the
officer had written.
It says not that he was an
irresponsible boy but that he had got the wanderlust. That ordinance report appears on page 1967,
and I do not know of a better corroboration that he could have obtained.
There was no reason for him to go to
2898
old. None of his immediate family were there. He wrote to his folk along the way from
Haupt was a 21-year-old boy. You cannot judge him by the criterion of a
mature man. He took that money and
went. He cabled his parents from
2899
we
were; but they were disturbed about the thing.
Haupt say he was checked and rechecked and held down. He was in doubt whether he was a
citizen. He tried to make out that he
was a German in order to escape mistreatment, but he could not get a job
anywhere, for the Germans would not let him work anywhere.
He went to his grandparents. The authorities went there every day or two
and checked up on him. That was exactly
what would have happened to a German who came here and landed on the very day
of
Well, he had two motives. He did not want to go to concentration camp,
and he wanted to get back to
They say, “Well, did you tell
anybody?”
How much chance would he have had to
get back to
When he came over here, although they
had provided him
2900
with
a registration card in the name of Larry Jordan — although that had been done —
and a social security card in the name of Larry Jordan, he destroyed them. He went to a hotel and registered in his own
name. He gave an address in
He said in his statement that he went
on home and registered for the draft and then went down and applied for a
job. Instead of using the money for the
purposes of which it had been given to him, he gave some of it to several of
his friends, and he tried, we say, to get back into the run of American
life. They say that maybe that was just
a plan to cover up. Well, if it was, why
did they give him a social security card in the name of Larry Jordan? Why did they do that if that was to be the
plan for him to cover up?
I must admit that naturally he did not
want to get caught until he could do something about this thing or get a chance
to get here. He knew the dangers of the
thing. He said the reason why he did not
do anything or tell everybody about it was that they told him they were going
to meet in Chicago on July 6 — and they all said that in independent statement
before that — they were going to get together and discuss it, and he thought he
would wait there until these other boys came.
We did not want to be a rat, he said, and tells them that he was not
going ahead with it. He had been afraid
to tell them earlier. He did tell
Neubauer, so Neubauer says, when Neubauer got there;
2901-2
but he had not
seen others, and he said he was going to tell them that.
2903
Well, now, that is the story. It is not necessary for us to convince you,
even by the weight of evidence whether that story is correct or not. I think, taking all the circumstances, it is
so far corroborated that you would be convinced. But can there be any doubt in anybody’s mind
that that is substantially corroborated?
Can any commission find beyond a reasonable doubt that that boy is not
telling the truth, with all those circumstances?
We can all remember, to some extent,
when we were 21 years old. Some of us
have children or friends of ours have children about the same age. Let us apply his story and test -- we cannot
apply it to anybody else -- to that of a 21-year-old boy, raised in America,
all his friends in America, his parents in America, and getting in trouble with
a girl and running away, and getting to Europe the day Pearl harbor occurred. That is the situation with him. It is a situation which differs radically
from those situations of the other parties that I have discussed.
If the Commission should desire or
care to use this memorandum for any purpose, it may do so. We have the page numbers of that
testimony. I have not sought to read
that to you, because you have the record.
In
That is the situation about
Haupt. I think he is entitled to special
consideration because of those facts.
The President. The Commission wishes, if you care to have
this considered for our convenience, that you first show
2904
it to the other
side to see whether that care to make objection or to make any remarks on the
subject.
Colonel Royall. I have tried to follow this. Of course, someone speaking from notes does
not look to follow; but, at the same time, I have used it.
The Judge Advocate General. Do I understand this is being offered in
evidence?
Colonel Royall. No sir, not a bit. It would not be appropriate evidence. I merely said it was analogous to a brief. It has the pages in the record as to each of
these statements. I do that instead of
standing up her and reading the pages. I
could read that and ask the Commission to write it down -- they would not have
to -- but this is nothing in the world but a memorandum of what I am using in
my argument, with the page numbers written in it. It is not offered in evidence,
The Judge Advocate General. It is never the custom in a military court to
submit anything of this kind. It is
simply a supplemental argument for the Commission to consider in bringing out
the salient points of his side of the argument to their attention while they
are coming to their findings on the facts.
I do not think that it is admissible or that it should be considered by
the Commission.
The Attorney General. As a practical matter, it puts us in a little
bit difficult circumstances, because here I think we all assumed properly that
the final arguments would come today.
Here is a long analysis of the evidence made by counsel. Now, we really do not want to go back and
make another long analysis of the record and submit it to you later.
It seems to me you have given great
latitude toward
2905
arguments, very
properly, of counsel. The Judge Advocate
General informs me that it is not proper to submit written briefs. I defer to him in having more knowledge than
I do of courts-martial. As a practical
matter, however it is a little hard for counsel at the minute to be presented
with this analysis of the record. If it
were done we might want to ask delay to make another analysis of the record and
for a counter brief to file and so on.
It seems to me, in view of the very
careful and able analysis made orally before the Commission, that it would not
be inappropriate for the Commission, in its discretion, to decide that that was
sufficient and that they would not accept this document
Colonel Royall. I say again to the Commission, I am not
arguing at all about it. I am just
tendering it as part of my argument. If
the Commission does not want to consider it, it is all right.
I am perfectly certain that it is an
appropriate thing to do in any court that I have ever argued before. It happens every day before court. You hand them up a memorandum of the
evidence.
Before I finish, I merely want to say
this. If the Commission does not want to
consider it, and so advises me, there are some pages of the record that I will
probably read. It may take a little time
to do it. I thought this was a more
convenient way to do it.
A Member. How much of it is there?
Colonel Royall. I do not know how many pages; a number of
pages.
2906
A Member. We could get it in there in the time we have
had for this argument on the subject. It
seems to me you certainly can do that.
Colonel Royall. I will do whatever the Commission says. I am going to read parts of it later, at the
appropriate time in the record.
The President. The Judge Advocate General.
The Judge Advocate General. I have here copies of summaries for my own
use that I have prepared. I will be glad
to submit them to the Commission.
Colonel Royall. I think it would be just as appropriate as the
other would be. May it please the
Commission; I do not want to argue about this question, because I have not
tried to offer it in evidence. I just
ask the Commission if it would be of any service to them. If they do not want it, it is all right with
me
The President. The Commission feels that if you wish this to
be considered in part or as a whole it should be submitted in the record as
part of the evidence before the Commission.
Colonel Royall. That is entirely satisfactory to me.
The President. As part of the argument.
Colonel Royall. It is entirely satisfactory to me.
The procedure I am going to follow in
that connection, and I think that is a perfectly appropriate and satisfactory
ruling, is that when I complete the rest of my argument -- I do not want to
interrupt it by reading it now -- I am going to read into the record the pages
of the most material parts. I probably
won’t read it all.
The President. Well, the Commission will hear that
2907
Colonel Royall. Now, may it please the Commission, we come to
the testimony as it relates to the defendant Burger. The Commission will recall that he was the
only defendant as to which an extended argument was made at the close of the
prosecution’s evidence.
At that time we suggested to the Commission
that upon the prosecution’s case itself.
The Commission had authority--it was not required to do so under the
Court-Martial Manual--to render a verdict of not guilty; and the answer that
was made to that was that it was a matter which would more appropriately arise
at the end of the case. That was the
view announced by the Commission by the Commission--that the motion would not
be granted at that time. That was substantially
what the Commission said, not inferring that you were going to do anything, but
that was the discussion about it.
We have gone on and had Burger on the
stand, and instead of weakening his case in any respect, we contend it has been
immeasurably strengthened by your opportunity to observe him. I looked over the record last night, and I
think this is right. The Commission
itself asked Burger more questions than they did nearly all the others put
together. Those answers, if you just sit
down and read them--I think you recall it--showed a frankness, even where he
stated something that he could have colored a little, the like of which I do
not ever recall seeing on the witness in many days.
Burger is in this situation. He is proven man of character in this
country. He served two enlistments in
the National Guard in different States.
Not only did each of his commanding officers give him a character of
excellent, but they
2908
went out of the
way to add a note, and one of them said, “Exceedingly reliable and
trustworthy,” or words to that effect, under “Remarks.”
Not only is that true, but when he was
leaving they wrote him a special letter commenting upon his integrity. After he had gone to
That is the picture we start out with
of Burger. Not only is that true, but
Burger was willing to go on the stand in this case as a prosecution witness,
before the evidence was closed for the prosecution, and offered himself for
that purpose, which indicated as clearly as could be indicated that he felt
right then nothing could be brought out that was in any way derogatory or
contradictory to his statement.
He did not go on at the outset of the
case, and he told you his counsel prevented him from doing so, because he
thought he would not be fair to the other defendants; but before the
prosecution closed, he offered to go on the stand, and you can see why, because
you have seen him on the stand.
I was amazed at his frankness about
his being a citizen. He said he was a
citizen over here, and I think it was the Commission who asked him--or somebody
asked him; I do not recall that--as to whether he was a citizen of the
2909
told you the
facts about it. I want you to read that
answer. It is in the testimony. I will read you the page in a minute. See if that is not a model of a frank and
fair statement of a man who is not trying to color his testimony either way,
either to help himself or hurt himself.
That appears on pages 2594 and 2595 of the record. While I am going through Burger, I might
refer to his pages, and then I will save that much time. His discharge and recommendation start on
page 2702.
Another rather interesting feature of
his appearance on the stand--and it shows the prosecution’s attitude toward it,
although I am not going to try to interpret their views--is that if you look at
the cross-examination of our able Attorney General you will find that there was
no effort to undermine Burger’s statement as there was in the case of the other
defendants. There were one or two points
he was not exactly clear about, and you know how the German type of mind
works. They get a stubborn idea and they
go ahead, and you have got to lead them around to clarify it. But outside of the clarification of a few
points, which were clearly clarified after you got to the point, the other
cross-examination was solely in an effort to elicit other facts that might help
the enforcement of the law.
I am going to suggest something her,
and if there is any objection from the prosecution I think the Commission
should sustain it, because it probably is not in line with procedure, although
there may be some doubt about it. There
have been posted certain circulars about some of these other people they are
trying to get, and I have those circulars.
I got the
2910
circular of
Swenson
Let me tell you what I want to do with it, Mr. Attorney General.
The Attorney General. All right.
(The Attorney and Colonel Royall conferred,
after which the following occurred:)
The Attorney General. I am afraid the prosecution must object
Colonel Royall. All right, sir. If there is an objection, we won’t do
it. But I do want to say this, without
reference to what I hoped to present to the Commission. Burger gave on the witness stand the most
accurate description, not only of these men here, but of others who were
connected with this case in
If the F.B.I. did not use his exact
descriptions for the purpose of apprehending those men, they missed a mighty
good bet. He was accurate to a detail;
and he made that statement, may it please the Commission, before he knew
anybody else had given that information.
He knew Dasch was in
He gave that statement, and he has
never changed it, modified it or enlarged it in any way. In other words, his statement given there
when he was first apprehended stands today, and he says on the witness stand he
does not want to change, and has not wanted to change at any time, one word of
it any way. It stood the test of all the
investigation the
2911
F.B.I. has
made, of all the examination of these various other defendants, of all the
witnesses.
He did not
enlarge it by a long statement. He did
not change his story. He did not modify
it. He told the truth, he says, and
still says is the truth; and every circumstance in this case, except maybe one
or two minor matters of recollection, corroborates him in every particular.
2912
Agent Layman said it was a full and
frank statement of the facts. He is the
man who testified that he has known of all of the investigations they made in
this matter, either directly or through what others have told him, but he still
says it is a frank and fair statement that he made when he was first
apprehended and not changed I any particular.
Burger said he never had any intention
of doing anything except getting out
The Attorney General said:
“Whom did you plan to report
it to?”
He answered, “I didn’t make any plan
about that. I didn’t know what I was
going to do, as to who to report it to when I got to
He didn’t say, “I planned all that I
was going to do.” He just told the truth
about it. He said, “All I knew was that
I was going to get away from
That is another illustration of a man
who could have said, “Yes; I planned all this and all that.” But he did not say it. He told the truth about it.
Of course others have said that he
came to America for some other reason which reflects on him some extent,
possibly; but that is the first story told back there when he was apprehended,
and it is corroborated by every defendant on the
2913
stand and corroborated
by something else that cannot be denied.
Burger had been terribly mistreated in
He tells you the story that he was a
member of the old Storm Troopers; that he was with Roehm; that Roehm was
killed.
And I want to suggest to the
Commission that his original statement, if there is any question in anybody’s
mind, ought to clear him, if there were nothing else.
But here is his testimony from page
2595 to page 2602, inclusive. He tells
the story on the stand. The same story
he told in his statement, and the same thing he told on cross-examination,
exactly.
He said that Roehm was killed; and
everybody knows that is a fact. Also
three thousand of his followers were killed, and he escaped because of his
friendship for a doctor. He tells you
that right then he formed the intention of escaping from
2914
That man is a soldier, a solider in
his personal and family relationships and in every relationship. He was a soldier over here, and as long as
they were treating him decently and treating him like a soldier, he was a
soldier in
There is another illustration of the
type of this man that appealed to me in that connection. You know, he did not get any pay for coming
over to this country -- that is uncontradicted in this record -- except that he
insisted that all he was going to do was to remain in his capacity as a
soldier. He did not get paid to come
over here except what he was getting in that capacity.
He figured, he says, that he was
entitled as long a he was living under that terrible domination to take what
they were paying him as a soldier until he could get away. He did not go into it as a business contract
to improve his financial position. He
went into it under the duty imposed on him.
As long as he was in the organization he said he wanted to be
2915
legally in
I think if you will look at the cross-examination of Burger on page
2637, if you want to make a note of that, he made the most satisfactory answer
as to his intent and purpose, in answer to a question by the Attorney General
-- so satisfactory that the Attorney General did not pursue that cross-examination
further. I had not asked the direct
question. He had already stated it in
his statement and I was not trying to prolong the case. But the Attorney General brought it out, and
it already corresponds with what he said and contended all along.
That was his political
difficulty. And then came the war and he
went to
2916
And Burger, the soldier that is --
when he was on the witness stand, I tried to get him to magnify that a
little. I thought maybe he would make it
a little more graphic as to how they treated him and it would be more
impressive. But I could not do anything
with him. He just told it as it was; did
not try to color it, did not try to exaggerate it, and he ended up saying, “I
am not complaining about what they did to me; I am complaining about what they
did to my wife.”
That was somewhat like a courageous
man, I think. I tried to get him to
complain, but he would not do it. I had
to draw it out of him on the witness stand.
He said, “They told my wife that I was going to be eight years in the
chain gang. They knew she was pregnant,
and they caused her to have a miscarriage and become terribly ill. They told her that she had to divorce me; and
made me write her a farewell letter.”
And then he said that under those
circumstances, added to his party differences, he formed the firm desire that
for personal reasons he had to get out of
Who wouldn’t? That is corroborated by every one of these
defendants. They may not like Burger;
they may feel that Burger has in part been responsible for their apprehension. The Commission may have observed in this
trial some attitude of hostility to him; but in spite of that fact, every one
of them corroborates him in every detail except some very minor ones which I
will mention in a minute.
He went to this school and Kappe told
the others to be on the lookout for him, and he had to be cautious in what he
said. But now and then he would
slip. He slipped once to Dasch and said
something about the Gestapo. A man can
slip
2917
sometimes under
those circumstances.
But he was trying to get out of
The others suspected him in camp. They thought he was hostile. They said that while he did not say he was
hostile, except slipping once or twice, every one of the mistrusted him; and
the first thing that two of them said when they were arrested, without knowing
anything about it, was "Burger turned us in.” They did not know anything about it, but when
the F.B.I walked up to them they said, Burger turned us in "-- because
they had known all the time that no man so mistreated could be loyal to that
country.
When he came over here he brought with
him his National Guard papers, which they may say was trying to "cover
up." But he brought German writing,
German memoranda, and a photograph of his wife taken in
I am not going into his conversation
with Dasch. He finally found on Saturday
night that there was one other man in that group that he had suspected a little
while -- Dasch --
2918
but
he had been afraid to say anything. He
found he felt that he wanted to do something.
I am not arguing for or against Dasch
in that connection. You have heard his
story. But as soon as Burger found it
out he said, "I didn't want this to get back to
He was trying to do just what he said
he was trying to do. Dasch had told
him. He would not let him tell him at
length--and that is not reflecting on Dasch, because Colonel Ristine still
admits he talks a good deal--but Dasch had told him, and it was the truth, that
he was going down to Washington, and Burger waited for him to do it. It is not denied that he went there and
registered in his own name. But after he
got Dasch's letter saying he was going to
2919
The F. B. I. said that when he walked
in, he did not even display any surprise.
There were all his German papers, all his American papers, all his money;
no effort to hide it; everything right there.
That corroborates him in every way.
I am not going into the question of
the objects he left on the beach for the coast guard: that before they saw the
coast guard, he went over to get those explosives, to keep any damage from
being done to this country. That was
before he knew that the coast guard was there, and the location where they
found them shows that they must have been true.
The coast guards own testimony shows that Burger was telling the truth. The first thing the coast guard noticed was a
man dragging a bag. While the coast
guard was standing there, a man came by dragging a bag.
Burger did not know what the coast
guard had said or was going to say, but he told the F. B. I., the first time he
saw them, that he dragged the bag on the beach and dropped these objects as
markers. He told that to the F. B. I.,
not knowing that the coast guard had ever said anything or that they had ever
known anything about the coast guard, and the coast guard came on the stand
here not knowing what Burger would say.
What attracted the coast guard's attention was a man dragging a
bag. Not only is that true, but after
Burger knew that the coast guard was there, Burger continued to drop objects,
and the coast guard used those objects for just the purpose Burger said they
were to be used. The coast guard used
them and went
2920
right
to those boxes and found them. Burger
made those statements before he knew that the coast guard had uncovered them or
done anything about them.
I am not going over the Dasch
situation, because that has been covered pretty thoroughly. What was said about what Dasch told him after
they talked about it applies equally to him.
The letter from Dasch that was left in the hotel is very material.
Let us take up one or two little
discrepancies that the prosecutions might point out here. I do not think there are many.
There were little differences in
recollection as to what the conversation was with Quirin and Heinck when Burger
saw them on one occasion. He said that
they were very indignant about George Dasch running out on them and made some
threats. They say they were indignant
but they do not remember making any threats.
That is just an immaterial variation in the recollection of the conversation. Both Heinck and Quirin admit that the
conversation took place. Both of them
admit that they were indignant because of Dasch.
The letter that Dasch left in the room
and that was found in the room appears in the record at page 1475. Burger said he was in the bathroom when
Heinck and Quirin found the letter. One
of them said he had a recollection that Burger was lying across the other bed
what differences does it make? Where
everybody was in the room is something that cannot be remembered. They both told you that they went in there
and found this letter from Dasch that he had put in a drawer, which he had not
told them about. They both stated
that. It corroborates him
2921
substantially.
Then the question is whether Quirin was
assistant leader of the group. Quirin
said he did not think you would call him assistant leader. He was in charge of Heinck. I don't know whether that is a difference in
words or meaning.
Then, there was some suggestion on
cross-examination that Burger denied he had a story to tell over here. Burger said he was given a story by Kappe,
but he told Kappe, "I am going over there and am going to use my own
name. I am not going as Jew or
pretending to be a Jew.”
Kappe said, “Why? They know you in
He had to give Kappe some reason, and
this is what he told him, and it appears in the record:
"I am going as a
soldier, and I want to redeem myself with the party."
He had to tell them something. Kappe saw that and let him come. So, there is no contradiction there with any
witness or any other testimony. In other
words, I say that there is nothing in this case to suggest that Burger was
doing other than telling the truth.
There has got to be a criminal intent
in this matter. Burger did what any
person in this room would have done under similar circumstances. Mistreated as he was, his wife mistreated as
she was, he did what any man would do, and every bit of his conduct and every
word of every other statement corroborates that 100% as also every word of the
testimony. His appearance and demeanor
on the stand indicates that. We say that
there is no doubt at all in our minds that the defendant Burger, regardless of
concern with any other case,
2922
should
be found not guilty of any of these charges.
Of course, he will have to be
interned, but there is plenty of procedure to intern him. He is an alien enemy, and the Government is
interning most of them.
But there is another thing: He has not
tried to pretend anything about his citizenship. He says he is not an American citizen because
he was drafted into the German Army. He
does not want to be a citizen of
Therefore, we say to this Commission
that on his statement, a verdict of not guilty should be entered. That is my argument expect for a brief
conclusion.
The President. Would you prefer at this moment to have a
recess, or would you prefer to finish your argument?
Colonel Royall. I think if we took a five-minute recess, it
would be helpful. My argument will not
last very long, but it is going to take me probably five or ten minutes to read
these page numbers.
The President. Then, we shall take a recess for ten minutes.
(At this time a short recess
was taken. The following then occurred
:)
The President. The Commission is open. Will the defense proceed, please?
Colonel Royall. If it pleases the Commission, I am going to
read this memorandum, but it will take a little while
2923
longer
than I had thought it would. I went
through it to see if I could eliminate some of it.
The President. May I ask how long it will take?
Colonel Royall. It is going to take quite a little
while. There are eighteen pages.
The Judge Advocate General. If it is agreeable to the Commission, we are
willing to let counsel submit that to the Commission if we may submit our
memorandum also.
The Attorney General. That will save the time of reading these long
statements.
Colonel Royall. That is satisfactory. Anything the Commission wants to do about it
is satisfactory to me.
The Judge Advocate General. We are anxious to save all the time we can.
Colonel Royall. I have absolutely no objection
The President. We will admit both as side-memoirs and as
part of the argument.
Colonel Royall. Here is one for each member of the
Commission.
The President. I take it that this will be tendered as part
of the argument at this time, and I understand that you will then tender as
part of your argument certain notes?
The Judge Advocate General. We made brief notes, and some of them are
underlined.
Colonel Royall. May I see them? I should like to have an idea of what they
are.
I shall present to the Commission
seven copies of our statement, and I have another one to place in the record if
you want it in the record. This is just
for the convenience
2924
of
the Commission, if the Commission wants to use it, with reference to page
numbers.
A member. We have already heard that as part of your
argument?
Colonel Royall. Certainly.
A member. If you want to place it in the record, we can
use it for reference to these different page numbers in connection with your
argument. Is not that what you want to
do?
Colonel Royall. That is all I want to do.
The President. As I take it, there is no objection on the
part of the prosecution to this being accepted as part of the argument of
Colonel Royall?
The Judge Advocate General. That is correct, sir.
Colonel Royall. May it please the Commission, in order to
close this argument very briefly; I want to be certain that I have called your
attention to the arguments of the various defendants. I asked them if there were any other matters
they wanted me to bring to your attention.
Some of them say that they want it
clearly understood that they did not have any opportunity to get out of this
thing after they once got into it, which seems to me to be quite apparent.
In the case of Haupt, his registration
for the draft would have meant that he would have had to go, if he had no
dependents, unless he could have got out of it on account of some physical
defect. There is something in the
evidence about that. But these things do
not usually succeed. So, when he
registered, he knew he could not have carried it out. He would have had to go in ten days, at his
age and with no
2925
dependents.
I call your attention again to
Burger's case, with reference to the carrying of this bag. The coast guardsman said that a man could
easily have carried it on his shoulder, so there would have been no need to
drag it, which was the hardest way to carry it, unless he had the intention
which he said he had.
May it please the Commission; we say
in this case, in conclusion, that there is a varying situation as to these
defendants. This being a judicial body,
we say it must give consideration to this varying situation. This Commission has the right and ability to
discriminate, not in an unfair sense, but on the basis of facts. That is the finest attribute of any judicial
body.
I realize that this is a voluminous
record. I realize that it is going to be
difficult for this Commission to remember everything that was said. It is impossible to do so. The memorandum I presented was made with that
fact fully in mind. We realize that no
body could remember where to find any particular part of the testimony without
some reference to a page number so we tried to keep a running memorandum during
the trial for that purpose.
We say that these men are not
guilty. We say that
I call your attention again to the
testimony of Kerling on page 2328 as to what would happen to an
Englishman--what does happen to an Englishman--similarly caught, and to the
common knowledge of what has happened to Hess.
I say that
2926
these
men -- some of them -- undoubtedly have violated some rule of law to some
extent. Perhaps I should not say that to
the Commission, but I should certainly be lacking in frankness if I did not say
so. But
As to four of these defendants, three
of whom we represent, the fourth being Dasch, I think the Commission should
particularly bear in mind the defendant Thiel and the type of man he is --
easily led and just going along with the crowd.
I think in the case of this young boy
Haupt, whose age in itself would justify a distinction, whose American citizenship
would in itself justify a distinction, and the corroboration of whose story
would justify you in accepting it, he ought to be acquitted. If he is not acquitted, we submit to the
Commission, he ought to receive a very minor punishment.
2927
Finally, in the case of the defendant
Burger, if the evidence means anything, if
corroboration
means anything, if the evidence and testimony of character means anything, if
the attitude of the F. B. I. and the fairness of the F. B. I., which in respect
to Burger is demonstrated to the nth degree, and the fairness of the
prosecution in their attitude toward Burger and their questions of Burger -- if
they mean anything, then the defendant Burger has committed no offense. With the evidence and the record as it is in
his case, I think it would be a credit to the administration of justice and a
credit to this Commission to acquit him, no matter what is done as to the other
defendants.
Now, it has been a difficult task to
argue about all these defendants. It is
difficult to be fair to all of them and present the case of one. We have sought to do it. We are convinced that they are
different. We are convinced that
May I add that there are copies of the
statutes relating to espionage and sabotage, which were requested?
The President. They will be received in the same way that
the others were received, as part of your argument.
The Judge Advocate General. May it please the Commission, before the
prosecution starts -- ?
The President. Pardon me one moment, General. Do I take it now that the defense has
finished?
Colonel Royall. Yes, sir.
The defense has finished. The
Commission will recognize that at the beginning of the defense argument it was
stated that, in view of the fact that
2928
the
prosecution had not covered the facts in detail in their first argument, if any
new matter should be brought up, we might ask for a reply to it. That was to be in the discretion of the
Commission. At this time I hope that it
will not be necessary for the defense even to request any further argument to
the Commission. That is our hope.
The Judge Advocate General. That is the matter about which I was to
refer. In the nature of this case, the
original opening argument made by the prosecution, under the particular
circumstances and the testimony of these defendants, fully covered the
facts. The defense is simply one of
intent. Any occasion for any further
argument on the part of the defense would be improper. I wanted it understood that we would have the
final closing argument.
The President. Are there any remarks on that, Mr. Attorney
General?
The Attorney General. As I understand, whether or not you wish to
follow the rules of courts-material, the rules are that the prosecution shall
have the concluding argument. We want to
say at this time that we want the defense given every opportunity to argue it,
as you have already given them, in any way that they want. This is our concluding argument, and we feel
that the defense should not be them permitted to make a concluding
argument. You have to decide at some
point who is going to conclude. I hope
that the Commission will now decide that our argument concludes that case
finally and permanently. Otherwise you
go on indefinitely with rebuttals and counter rebuttals. We now propose to make the final and
conclusive argument on behalf of the prosecution, and we think that that
2929
should
close all arguments.
The President. Are there any further remarks on that?
Colonel Royall. I just say to the Commission that it is
impossible for me to make any intelligent remark on that, because I do not know
what they are going to say. I do say this
to the Commission: that if they bring in what we consider new material, we
shall request the Commission for the right to address them further on that new
matter, in which event, of course, they will still have the right to
close. However, the purpose of the
opening argument is to cover the case.
If they elected not to cover the case at that time and to cover it now,
this is really part of their opening argument.
I do not see how we can argue that at
this time, until we see what is said.
The Judge Advocate General. I think you will find that no new matter will
be covered
Colonel Royall. I hope not.
I do not want to speak any more about it.
The President. The Judge Advocate General will proceed.
CLOSING
ARGUMENT ON BEHALF OF THE PROSECTION
by
THE JUDGE
ADVOCATE GENERAL
The Judge Advocate General. May it please the President and members of
the Commission: After listening to the
arguments for the last two days in behalf of the defense, it seems to me that
their idea of the proper specification to be brought before this Commission
would have been worded somewhat as follows:
"In
that, Burger and all the rest of these defendants, with intent to defraud the
German Government, did, in
2930
unlawfully
pretend to said German Government that they, well knowing that said pretenses
were false, and by means thereof, were saboteurs, and by means thereof did
fraudulently obtain from the said German Government the sum of $180,000 in
money, four or eight boxes full of explosives, and a free trip across the
Atlantic in a submarine."
Before we enter the discussion of the
evidence, counsel went to a considerable degree into the question of punishment
and what was necessary to be considered in this case in the way of
punishment. They said it was not
necessary to punish these defendants as a preventive, because there will be no
expeditions of this kind.
However, the Commission will remember
the story as told by these defendants that this was the first of a series of
these schools; that others were coming over here later; that they were going to
meet in Chicago; that Burger, if I remember correctly, was to start some sort
of a commercial artist establishment and put a notice in the Chicago paper
every fifteen days for the benefit of those who were to come later--most
probably Kappe and his assistants.
Kerling says that
2931
Their
whole case is based on their own evidence.
We have not been able to get the true facts as to that; and, of course,
we cannot go into
They went into the civil statutes
regarding sabotage, and they referred you to these statutes in Title 50, U. S.
C., 101 to 105, which contains certain sabotage statutes. I want to go into that a little further--
The President. What is the reference?
The Judge Advocate General. That is Title 50 United States Code
Annotated, Sections 101 to 105.
They said, first, that destroying or
injuring war material carries only a thirty-year penalty and a $10,000 fine;
but I want to invite the Commission's attention to the fact that that is not an
exclusive statute. That includes only
people who are here in the
Section 31 of that book reads:
"Whoever, for the purpose of
obtaining information respecting the national defense with intent or reason to
believe that the information to be obtained is to be used to the injury of the
United States, or to the advantage of any foreign nation, goes upon, enters,
flies over, or otherwise obtains information concerning any vessel, aircraft,
work of defense, navy yard, naval
2932
station,
submarine base, coaling station, fort, battery torpedo station, dockyard,
canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless,
or signal station, building, office, or other place connected with the national
defense, owned or constructed, or in progress of construction by the United
States or under the control of the United States, or of any of its officers or
agents, or within the exclusive jurisdiction of the United States, or any place
in which any vessel, aircraft, arms, munitions, or other materials or
instruments for use in time of war are being made, prepared, repaired, or
stored, under any contract or agreement with the United States, or with any
person on behalf of the United States, or otherwise on behalf of the United
States, or any prohibited place within the meaning of section 36 of this title,
*** shall be punished by a fine of not
more than $10,000, or by imprisonment for not more than two years or
both."
Section 38 says:
"Nothing contained in
this chapter or Chapter 12 of this title shall be deemed to
limit the jurisdiction of the general
courts-material, military commissions, or
naval courts-martial under Chapter 36
of Title 10 Chapter 21 of Title 34."
I brought that out to show that that
is not exclusive and particular as to the jurisdiction of the military
commission in this case.
Coming to the 82nd Article of War,
quite a bit of emphasis
2933
was
placed upon the question of spying and the proof necessary under
"spying."
In that connection, Colonel Dowell, if
I remember correctly, called particular attention to the fact that it was
necessary to prove:
"(a) That the accused
was found at a certain place within our zone of operations,
acting clandestinely, or under false
pretenses; and (b) that he was obtaining, or
endeavoring to obtain, information with intent
to communicate the same to the enemy."
That must be read with the prior part
of the section, and I am reading from page 157 of the Manual for
Courts-Martial:
"The principal
characteristic of this offense is a clandestine dissimulation of the
true object sought, which object is an
endeavor to obtain information with the intention
of communicating it to the hostile party. Thus, soldiers not wearing disguise, dispatch
writers, whether soldiers or
civilians, and persons in aircraft who carry out their missions
openly
and who have penetrated hostile lines are not to be considered spies, for the
reason that, while they may have resorted to concealment, they have practiced
no dissimulation.
“It is necessary to prove
intent to communicate information to the hostile party.
This intent will very readily be inferred on
proof of a deceptive insinuation of the
accused among our forces, but this inference
may be overcome by very clear evidence
that
2934
the 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."
But this inference may be overcome by
very clear evidence. The intent is
presumed, and it must be overcome by evidence, and that evidence must be clear.
Again:
"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."
In that connection, there has been
some evidence introduced here with reference to the conversation of Kerling and
Neubauer, if I remember correctly, on the way up from
Also, as to spying, I would like to
read paragraph 88 of the famous General Order 100 of 1863:
"Spies. A spy is a person who secretly, in disguise,
or under false pretenses, seeks information with the intention of communicating
it to the enemy. A spy is punishable
with death by hanging by the neck, whether or not he succeeded in obtaining the
information or in conveying it to the enemy."
2935
In this same connection, under "spying,"
the question was brought up that this must occur in the theater of operations;
and the defense counsel have attempted to show that Long Island and Florida
were not in the theater of operations.
I will admit that that contention was
made before the decision of the Supreme Court yesterday on the habeas corpus
matter. It seems to me that that
probably will straighten out the question as to whether this is a theater of
operation. However, I fail to understand
why counsel has insisted that, in view of the change of name from theater of
Operations to Eastern Defense Command, this is still not a theater of
operations.
One counsel has endeavored to
distinguish between the zone of the interior and a theater of operations. Of course, we know that in
In this country, where we have a
theater of operations right on our seacoast, and we have installations like the
port of embarkation at Brooklyn, which is on the waterfront within a few miles
from where these men came in, the supply establishments and the theater of
operations are in the same place. In
order to relieve the commanding general in the field of the trouble and the
duty and the work of taking care of all these installations in the territory,
they have taken the control away from him and put it in the S.O.S.; and, as
Colonel Sherrill testified here, the factional situation is just the same since
the date of that order as it was before.
Under Article 81, under
communications and the giving of money and things to the enemy, this is
provided:
2936
"Relieving, corresponding
with, or aiding the enemy. Whosoever
relieves or attempts to relieve the enemy with arms, ammunition, supplies,
money, or other things ***.”
We have shown here that not only did
they come to this country, but that they gave each other money, which directly
comes under that. The word
"relieves" means assists.
2937
In that connection I want to read from
the transcript of the proceedings before the Supreme Court in the habeas Corpus
matter in connection with this case.
Colonel Royall. Do you think that ought to be done? I will leave it up to you.
The Judge Advocate General. I think that is proper, Colonel Royall.
Colonel Royall. I know you would not do anything that you
thought was improper.
The Judge Advocate General. This is on page 241of the transcript.
The President. Is that page 241 of the record?
The Judge Advocate General. The Transcript of the proceedings held before
the Supreme Court of the
The President. Is this in our record?
The Judge Advocate General. No, sir, it is not.
The President. Please read the reference again.
The Judge Advocate General. Page 241 of the transcript of the proceedings
before the Supreme Court of the
If there is any question about it --
The President. I am not questioning it. I am simply asking for the reference. I would like a statement from you as to just
what it is and what you are reading so that we will be sure, if it is not in
the record, that we know what is going into the record that we know what is
going into the record.
The Judge Advocate General. I was going to read a portion of that
transcript. What I am trying to show is
that relieving means assisting, by assisting in the way of money,
2938
munitions,
or anything of that kind. That is what
it means here and what has been proven.
With the reference to Charge 1, under
the law of war, counsel has said that they do not know what law of war is
violated. I would like to refer to
Section B4 of General Order 100--
The President. Pardon me, General. I am not sure yet. There was a reference made by you to
something that you were going to read into the record. Now do I take it that you are not going to
read it into the record?
The Judge Advocate General. I said that if there was any objection I
would not go ahead with it.
The President. I did not hear any objection.
Colonel Royall. I did not make any objection, sir. I merely inquired of The Judge Advocate
General whether he thought it would be proper to read from argument in another
case, and I told him I would leave it entirely to him to decide, because I was
confident that he would not do anything improper. That was all that was said about it.
The Judge Advocate General. Of course the testimony is not in evidence
here.
Colonel Royall. It is not testimony; it is argument.
The Judge Advocate General. Yes; argument.
The President. Then I understand that you are not going to
read it?
The Judge Advocate General. No, sir.
The President. I just wanted to make it plain in the record,
because you said you were going to read it, and there was no statement that you
were not going to read it.
The Judge Advocate General. I said that if there was any question about
it I would not read it.
2939
I am now going to read from Section 84
of General Order 100, applying to the first specification under the Law of War:
"Armed prowlers, by
whatever names they may be called, or persons of the
enemy territory who steal within the lines of
the hostile army for the purpose of robbing,
killing, or destroying bridges, roads, or
canals, or of robbing or destroying the mail, or of
cutting the telegraph wires, are not
entitles to the privileges of prisoners of war."
Again, Paragraph 352 of the Rules of
Land Warfare:
"Armed prowlers"
--
The President. What date is that?
The Judge Advocate General. 1940. The foreword is:
"PM 27-10, Rules of
Land Warfare, is published for the information and guidance of all concerned.
"By order of the Secretary of
War:
"G.
G. Marshall,
"Chief
of Staff
"Official:
"B.S. Adams,
"Major General,
"The Adjutant
General."
It is dated “
Paragraph 352 reads as follows:
"Armed
prowlers, by whatever names they may be called, or persons of the enemy
territory who steal within the lines of the hostile army for the purpose of
robbing, killing, or destroying bridges, roads, or canals, or robbing or
destroying the mail or of cutting the telegraph wires, are not entitled to be
treated as prisoners of war."
2940
Also Section 357, headed "War
Crimes Subject to Death Penalty:
"All war crimes are
subject to death penalty, although a lesser penalty may be
imposed.
The punishment should be deterrent, and in imposing a sentence of
imprisonment it is not necessary to
take into consideration the end of the war, which does
not necessarily limit the imprisonment to be
imposed."
The argument has been made that these
men did not commit any crime under Charge 1.
That is the charge we have here of their entering this country wearing
uniforms, from which they changed to civilian clothes. The charge is that --
"being enemies of the
Reich, a belligerent enemy nation, secretly
and covertly passed, in civilian dress,
contrary to the law of war, through the
military and naval lines and defenses of the
United States, along the Atlantic coast, and
went behind such lines” --
The President. This is quoted from the first charge?
The Judge Advocate General. From Specification 1 of Charge 1.
These, may it please the Commission,
are offenses against the Law of War.
They are not crimes as such, but they are offenses and made so by the
customs of war amongst nations, and penalty has been prescribed, not only by
various conventions, but by custom.
These people were stopped before they
actually did any sabotage work; but the offense was in not only planning to do
this, being schooled to do it, but coming through the lines in the way they
did, and getting into civilian clothes.
2941
They knew what the proposition was
when they started. They knew what they
were up against. They were told to wear
the uniforms so they would be treated as prisoners of war when they got here,
if they were caught, and immediately they got by they were to take off their
uniforms and come in as spies and saboteurs to do this kind of work.
The whole proposition comes to this,
that it is not a question of whether they actually got to the place where they
could sabotage something, but they did come through the lines for that purpose;
and the only reason they did not do it was because they were caught by the
F.B.I before they could get to the place of the crime.
Reference has been made to Adolf Hess,
that he was not punished; that he was put into an internment camp. We all know that Adolf Hess went to
I want to make my argument as brief as
I can.
The defense has taken these defendants
up in order, and I shall try to take them up in the same order, just bringing
out one or two short points which I think show their intent to go ahead with
this proposition.
I will refer again to the fact which I
referred to at the end of the prosecution's case, that in consideration of all
this evidence, except the corroboration as found by the F.B.I and the
explosives and things of that kind, all the evidence depends upon the
statements of the witnesses this Commission has to consider those statements as
to whether they all may
2942
be
true or part may be true or
I will read again the same paragraph
that I read from Wharton's Criminal Evidence, Section 606, which I read at the
end of the prosecution's case:
"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, excluding any exculpatory or
self-serving declarations in connection
therewith, also admitted. However, it is for the jury" —
Or for the Commission in this case --
"to
say what weight shall be given to the several parts of the statement as they
may believe that part which charges the prisoner and reject that part which may
tend to inculpate him."
It is with that in view that this
Commission should approach this evidence.
The accused have made various
statements. Taking Kerling, first, I
will just make one or two brief references.
He says in the record, at page 1563:
"At the time of my
apprehension we were attempting to get located in a place we
could use for a hideout as we had no specific
plans at this time as to any sabotage, it
being intended that we should get located and
then return to get the explosives. This
was
in accordance with instructions we had received
in
"At the time of my
landing I intended to follow my instructions and to sabotage
power lines and other facilities that might be
suitable, but in the course of my stay
2943
I came to the conclusion that our
orders were made impossible to fulfill."
He said, further:
"After Thiel and I
arrived in
him the purpose of my being
here."
Record page 1641:
"In
in order to dig up the material buried
on the beach and take them to the scene of their
operations."
Those are not the statements of a man
who has changed his mind. At least he
has got so far in this country as to go through with everything except the actual
sabotage; and the fact that circumstances change, that events turn out whereby
they are apprehended, does not lessen the offense under the charges.
With reference to the testimony of
Heinck, at page 961of the record he says:
"We
went to the Faje's apartment for dinner.
During the evening it was mentioned that we had come to the
I do not want to go into all this
evidence too much, but I am just trying to bring out little incidents to show
that
Quirin said at page 902 of the record:
"At the time I entered
the
2944
no doubt in
my mind that I was violating the law and I consider myself and agent of
intended to do as when I left
there. Had I not been apprehended, I
might have carried out those instructions.
I feel that my loyalty is to
I do not need to read further on that.
Neubauer said at page 1732 of the
record:
"I admit that I came to
the
committing acts of sabotage, and
might’s have done so if the opportunity arose."
Thiel told Tony Kramer he had come
over on a submarine, that he had gone through a course in
That is found in the record at page
2270.
On page 1809:
"Thiel
said it was a difficult thing for him to decide whether he would carry out the
plan, but he thought that there were some things he would do, although he did
not want to kill anybody. He also said
he supposed as time went on he would probably do some of those things."
Defense counsel has seen fit to take
up the case of Haupt a little separately from the others and to try to make out
that this young man was just a misled young man of 21 who was more or less out
for a good time and trying to get a lot of sympathy. He told us how he got a woman into trouble
and ran away to escape that and to escape the draft.
2945
But if you will refer to the record at
page 2014 you will find that Haupt testified that he told Gerda Stuckmann that
he was going to
2946
But when Gerda took the stand--pages
2186, 2187, and 2189, she testified that she did not know that Haupt was going
or had gone until she went to see his mother after he had left. She further said that he told her on other
occasions that he might go to
I have not the page number or
reference to it, but if my recollection is correct Mr. Haupt testified to the
fact that Gerda came there after Haupt left, in order to find out. There is evidence of where Haupt is testifying
falsely before this Commission.
Then again, to show you what an ideal
young man he was about getting into the draft, I refer you to page 1 of his
statement of July 3, 1942, Prosecution Exhibit 218, which I think is on page
1658 of the record. Haupt said:
"While talking with
Wernecke shortly after meeting him, he asked me if I had
registered for the draft, and I told him I
had, but had not as yet received a questionnaire.
He said that I would probably be drafted right
away and ought to do something about it.
He said he would take me to a doctor for an
examination, and that I should tell the
doctor that I had coronary thrombosis,
rheumatic pains, swelling of my ankles, pain in
my left upper arm, dizzy spells now and then,
and headaches every week, indigestion,
pains in my chest, and pains in my back. According to Wernecke, no doctor in the world
could tell whether my heart was bad or not,
because a bad heart doesn't act up all the
time.
He said that I
2947
would probably have to be examined by
a draft board doctor later
on, but it would be a good idea to go
to another doctor first in order to establish that I
had been receiving treatment."
Then he went to the doctor and got
some pills. That is the young man who
came back to this country because he wanted to be here, and the first thing he
did was to take some pills to do something to evade the draft.
Counsel also appeals for Haupt by
saying that his testimony was weakened by the fact that all the other
defendants have played the same excuse, namely, that they never intended to do
this thing. Somebody has got to be the
first one to testify. Whether it was
Haupt, Quirin, or any of the rest of them, the testimony of the first one is
just as good or is weakened just as much or should not be weakened any more
then the rest.
The question comes up whether the
defense that they have put up by their own self-serving declarations is
something that this Commission is willing to take and believe as true. There would be some possibility of it if one
of them had done this, but when all eight of them come in and have the same
excuse, namely, that they were not going through with it, did not intend at
that time or some other time to do it, it becomes a situation where nobody can
ever be convicted when he comes into court on a charge of this kind if he says
he did not intend to do it. If that kind
of excuse is to be accepted, there is no use prosecuting. If all a man has to say is, "I did not
intend to do it," without any substantive evidence, there is no chance
that he will be convicted. On the other
hand, all the other circumstances show or prove to the con-
2948
trary
of what they claim, except in the case of Dasch and Burger.
I am trying to make this as short as I
can.
The President. The Commission hopes that you will take all
the time necessary to make your points.
The Judge Advocate General. Thank you.
I might take these men together as a general proposition, because they
both seem to be classed together, more or less.
They were together.
The President. What men are you now speaking of, sir?
The
Judge Advocate General. Dasch and
Burger. They were together in
He
became a favorite of Dr. Hausofer, if I remember rightly -- I may be wrong --
who is head of the geopolitics and of this University and the father of the
geopolitics theory of
From
then until 1942, Burger was in
2949
is that
he testified that his wife had been mistreated.
She was told that he was in Austria, having committed some crime, and
was going to be sent up for 8 years, and that as a result she had a
miscarriage.
On the other hand, Dasch goes
further. He gets in with these high officials
and works his way up to an important job.
Then he goes over to Kappe and starts to help Kappe with his
school. He works with him before the
school gets started, and then works with him during the school. The defense tries to tell you that Dasch was
not interested; he did not heil Hitler; he did not keep up with his studies,
and all that sort of thing. As for
Burger, they took him even though they knew he was not a saboteur.
These men were under Kappe, who I
presume was not the dumbbell that these defendants would have you believe him
to be, because, if you take away their story, I cannot conceive it possible
that a man with Kappe’s ability and the position he had would seek to take an
outfit of this kind and send it abroad -- an expedition of this kind,
constituting simply eight morons, as you might say, who had no intention of
going through with this at all.
Kappe was smart. He knew his man. He knew where they had been. He knew, apparently, from the testimony, that
Burger had been up there on some sort of secret mission. That was when the Gestapo took him. He was up in
2950
surprised if he
were still over here in the guise, possible, of German agent. He might have been an undercover man there.
Then they came to the point in
You remember that the first day, when
they arrived and met this coast guardsman.
They went to the railroad station.
Afterward, while waiting, the thought came to his mind then and
there. For the first time, should he
call up the F.B.I? The reason why he did
not do that, he said, was that he was afraid these other men might see him.
When he was caught be the coast guard,
it seems to me, was the first time that thought entered his mind that they were
going to be caught, and that the best thing to do was to run to cover. He goes, then, into
Then he goes on and plays cards all
Monday night, all day Tuesday, Tuesday night, and comes back Wednesday morning,
if I remember rightly, stating that that had steadied his nerves.
If he had been honest in his
intentions at the time, as was the testimony of one of the prosecution’s
witnesses, Mr. Downey, and turned in on that Sunday night when he called up the
F.B.I. In
2951
miles longer,
it could have been more clearly watched, with a much better possibility of
apprehending it.
Burger said that when he went to
The last charge and specification is
that of conspiracy. I want to invite the
Commission’s attention to that fact. If
the commission by chance should believe the testimony of any one of these
defendants, that defendant is still guilty of conspiracy, because all the
defendants conspired to come here and commit all the acts charged under charges
I, II, and III. The fact that one man
goes into a conspiracy without honestly intending, we will assume, to go
through with it or with the sabotage, makes him still guilty of the conspiracy,
because he is helping the whole program to be accomplished, getting these other
man over, getting them through the lines, getting them their dynamite and other
apparatus there, and, if they had not been apprehended, letting them go ahead
with the sabotage. The fact that he did
not intend to go through with it himself does not excuse him from the
conspiracy.
There is one other thing I want to say
with regard to this legal or illegal getting out of
2952
got an
opportunity to go out legally, because he wanted to protect his family. Likewise, Dasch wanted to protect his
family. But how much are they going to
protect their families by having come over like this and turned in to the
It seems to me that the prosecution
has proved all the elements of all the specifications and that all these
defendants should suffer punishment by death.
The only question in that connection is that which has been brought up
by counsel, namely, that one or two of these defendants have in some way assisted
the prosecution. That is true. References has been make to the testimony of
possibly pleading guilty in court and getting a sentence and receiving a
Presidential pardon later, some saying in six months, some saying in three
months; it is immaterial.
That is a question with which I do not
think this Commission should concern itself.
The question before this Commission is, are these men guilty, or are
they not, of the crimes or offenses charged?
What they have done to assist the Government may amount to little, or it
may amount to a great deal; it all depends on the circumstances, which are not
before this Commission, and of which this Commission can know nothing at all,
as to just what they did or what they might do.
That is a matter of clemency for the appointing authority.
2953
I respectfully urge the Commission to
take into consideration the old maxim of courts: that clemency is a matter for the appointing
authority and is not a matter for the court.
It is for that reason that we do not think that those circumstances that
have been brought up should be considered by the commission in finding its
sentence. For that reason, we ask for a
finding of guilty under each specification and sentence of death.
The President. I think we shall now recess.
The Attorney General. I shall take only about ten minutes, at the
outside. If the Commission would be
willing to hear me now, it would be a very great convenience for me. I guarantee not to go over ten minutes.
The President. I want to impress upon counsel that we are
not concerned with the time. This
Commission is charged with a heavy responsibility, and I do not like the
insinuation that you are taking up our time.
The Attorney General. I am sorry; I did not mean that. I meant that in view of the fact that this
was the ordinary time for adjournment, I was asking for personal consideration
for myself, if you would hear me now.
The President. All right.
We shall be glad to hear you.
Take whatever length of time you need.
CLOSING ARGUMENT IN BEHALF OF THE
PROSECUTION
By
THE ATTORNEY GENERAL
The Attorney General. I had at first thought it would be
unnecessary for me to say anything. Even
now I hesitate some what, in view of the admirable analysis of the case by the
Judge Advocate General, and in view, also, of the fact that the facts speak for
themselves, and speak loudly. But
with
2954
reference to
the espionage charge, it seemed to me that I could briefly point out a very few
parts of the testimony that to me appear to clinch this entirely.
Starting with the definition that the
Judge Advocate General has already called to your attention, that it is not
essential that the accused obtain the information sought or that he communicate
it, but that the offense is complete with the lurking or dissimulation or
intent to accomplish these objectives, I wish to point out that these men came
here with the intent of communicating with Germany and among themselves. They are enemies, and if they communicate among
themselves or intend to communicate among themselves, that is sufficient; and
obviously communication with the Reich is sufficient.
2955
I will read very briefly from some of
the evidence. First, Kerling, page 2323:
“Q There has been introduced in evidence a
handkerchief, which I think had
an address in
“A
“Q Was that address given to you?
“A That was given us by Kappe.
“Q For what purpose were you to use that address?
“A Kappe had an address where he always could reach me when there
was a
means to get over here, to get mail through,
which is not at present, and if I should ever
lose out on that address, that couldn’t do any
good any more, to reach me I could give
him a message through
“Q In other words, you left him an address where you could be
reached?
“A yes.
“Q And if changed that, then you could communicate with him?
“A Yes.”
Page 2622, the defendant Burger --
this is with respect to the Chicago Tribune advertisement --:
“A No.
I was to put up an ad, advertising in the paper. I can’t express myself in English.
“Q You were to put an advertisement in the newspaper; is that
right?
“A Yes, sir.
“Q In the
“A Yes.
2956
“Q When were you to put it in?
“A May I explain that? Reinhold Barth wanted to come over, and Kappe
said in a more or less general way that he wanted to come over later, but he
did not state when.
“Q Did Reinhold Barth state when he, Barth, wanted to come?
“A Yes. He told me
personally that he wanted to come over in September.
“Q September, 1942, of course?
“A Yes.
“Q Who was Barth going to bring with
him? Was he going to bring Swenson?
“A No.
“Q Who
was he going to bring?
“A He
didn’t tell me that he wanted to bring anyone, but he mentioned that he wanted
to bring another group with him.
“Q Was
he coming from
“A He didn’t say that.
“Q What was the arrangement as to the advertisement?
“A Reinhold Barth told me that I should, on the first and the 15th
“Q The first or 15th of what?
“A Of the month of August, as soon as I had
established a front, my identity in
“Q What was the ad supposed to show?
2957
“A That would mean that we established this front that we built up
an identity.
“Q Was that to be a communication to Barth
and Kappe that you had established your front in
“A Yes.”
In other words, when they had
established a front, the ad would show that, and then Barth was to come over in
the next submarine.
Haupt, at page 1635:
“We were also told we
were to attempt to develop contacts and assistants in the
“Kerling was furnished
with a small bottle containing several matches to be used for secret
writing. Lieutenant Kappe was in charge
of these preparations.”
Thiel, at page 1802:
“He told us that this
course was for purposes of writing between us members after arriving in the
The leaders were given addresses with
which they could communicate if they deemed it advisable to do so.
“In fact we were never to
communicate. In fact we
2958
were never given any means to communicate with
That is Thiel, who did not know about
the handkerchief except what he had heard.
Dasch, at page 1553:
“I was also given four or
five matched 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
matches with Lieutenant Kappe in
using a mail drop address in
writing on a white handkerchief. This address, which I do not know from my own
memory, was to be produced by putting the
handkerchief in ammonia and holding it up
to the light.
There was also an address of a relative of George Dasch’s on this
handkerchief in secret writing, which I could
use to get in touch with Dasch in case I
needed assistance from him or any member of
his group.”
Colonel Ristine. Whose testimony was that, Mr. Attorney
General?
The Attorney General. That testimony was Kerling’s. I thought I mentioned it. That was Kerling at page 1553.
2959
Dasch page 1334:
“Dasch: That is the address which should be used as
an undercover in the case we should
need it. Lopez,
“Traynor: Do you gather that this was where he lived?
“A I think this Walter Frohling is either a relation of his or a
friend or he
could have been or had something to d o with
the Bund. This is the address over which
I
shall also reach Kerling. I thought I put that down better. 21-55.
Franz Daniel
Posterious, Helmuth Leiner,
“Q Is that to contact Kerling -- that address?
“A That is the address over which I could
always contact Kerling in case I get lost.”
I think it unnecessary to read more or
this. There is quite a good deal more
evidence on it, but my point is that they came with the means and the
instructions to communicate and intended to do so.
Lest it should be thought that I had
not clearly expressed myself, I of course concur with the Judge Advocate
General in asking for the death penalty.
If you believe that these men were behind the lines for the purpose of
sabotage and, in addition, for the purpose of spying, I think your obligation
2960
is to find
that. I think that that is mandatory
It is an extraordinary defense when
you think of it. These men, on their own
confessions, trained in
I do not think that the situation of
Dasch and Burger, except as the Judge Advocate General pointed out -- that they
helped the prosecution eventually to get the others -- is very different from
the others.
Dasch organized the camp and looked at
the records and choose the men. If
Burger had spent seventeen months in a concentration camp, that more suspicious
would the Gestapo have been of him with regard to sending him on this highly
secret and confidential mission. Yet he
passed all the tests of the Gestapo. I
ask you, is it reasonable to believe that after he has come in through these lines
and after having passed those tests, he never had any intention to do and evil?
You must remember that these
defendants were not men who were caught in the war and were seeking to get back
here. They with their past associations,
their associations with the Bund, their German citizenship, their background
and action in the Germany Army, all went, except one, before the war between us
and
Perhaps they were soldiers. Perhaps they are young. Perhaps they are neurotic. But, nevertheless, they came over
2961
here and went
behind our lines as spies and saboteurs.
To say that you cannot find that because they now tell you, without any
corroboration, that they never intended to do any of this -- it seems to me
that if every essential fact is considered all this talk about the details is
highly unnecessary.
Colonel Royall. May it please the Commission: I desire to rise for only two purposes. The first of them relatives to the first
charge, as to which we have never been advised before the Judge Advocate
General spoke as to what part of the Rules of the Land Warfare he was
proceeding under. That having been our
first information, we would like to submit a comment on that.
The other matter is that, in
connection with certain testimony relating to Burger particularly, the Judge
Advocate General did not recall any reference in the record, and we have those
references, which we would like to give to the Commission. I think that is all that I want to say. It is up to the Commission.
I think I could insert the pages of
the reference in the memorandum we already have. In other words, you have the references to
the mistreatment of Burger himself, which the Judge Advocate General did not
recollect. That is in the record at two
places. The other one was his reason --
the effort to protect his family by getting the promise of secrecy from the
F.B.I. That is covered twice in the
record. There is also the testimony of
Haupt as being caught in the war over there.
The president. If I understand, you wish to appear and speak
once more in rebuttal?
2962
Colonel Royall. I merely want to insert those pages in the
memorandum which we already have. The
only thing I wanted to do in rebuttal, sir, is to refer to Rule 352 of the Rules
of Land Warfare, which the Judge Advocate General said is the basis upon which
the first charge is brought. The first
charge does not refer to this particular rule of the Rules of Land Warfare, and
we did not know exactly what section they were proceeding on with any definiteness. That has not been covered, because we did not
know it before. I wanted to address a
few remarks on that question alone.
The President. Are there any remarks from the other side?
The Attorney General. It seems to me, if it is appropriate to make
these references that further argument is inappropriate, but I defer to the
Commission. It seems to me perfectly
proper to refer you to these matter, but a continued argument after we have
closed I do not think is proper.
Colonel Royall. I do not think it will take more than three
minutes to say what I want to say.
The President. If there is no objection on the part of any
member of the Commission, we will hear counsel for the defense.
Colonel Royall. The only thing I wanted to mention with
reference to that was 352. They say now
that the first charge is the charge of being armed prowlers, which is under 352
and covered by Article 84.
The word “armed” must have some
significance. The statute cannot be read
as if it said “prowlers who steal within the lines or destroy bridges are guilty,”
because it adds the word
2963
“armed.”
It cannot refer to taking explosives,
because it says “armed prowlers who steal in for the purpose of destroying
bridges.” By adding the word “armed”
they must mean that the individual is armed.
Otherwise they put a word in there that does not mean anything, and that
cannot be presumed.
There is no evidence that these
individuals were armed personally in any way, and the explosives were not
capable of immediate use. They required
preparation, and therefore they could not be armament in any sense.
We do no think that they proven the
charge under 352. We did not know what
the charge was until this time, definitely, and that is the reason why we call
it to your attention. That is all we
care to say.
The Judge Advocate General. I just want to say this. I do not see how counsel can plead surprise
when counsel was arguing that very thing to the Supreme Court.
Colonel Royall. Yes, but you covered everything. You did not confine the charge to that
particular thing.
The Judge Advocate General. I just want to invite the Commission’s
attention to the fact that Section 352 is not limited to armed prowlers. It says, “Armed prowlers, by whatever names
they may be called, or persons of the enemy territory who steal within the
lines of the hostile army.”
There is not any question of armed
prowlers requiring to be proved here. If
there were
such a
question, if you refer back to the testimony, when the submarine landed at Long
Island the men in the rubber boat had Very pistols and side arms, and the
submarines down in Florida had a deck gun.
That brings it
2964
under “armed
prowlers,” if counsel insists on that, but that is not necessary. It says, “persons of the enemy territory.”
Colonel Munson. Has the defense anything further to offer?
Colonel Royal. Nothing.
Colonel Munson. I am instructed by the Judge Advocate General
that they have nothing further to offer on behalf of the prosecution, so both
sides, therefore now submit the case.
A Member. We wanted to ask you one question about part
of the record. We want to refer back to
the record. Do you remember where you
objected to all of the Dasch statement being put in?
The Attorney General. Yes, General.
A Member. A question then was raised with reference to
it. I believe you all consented to the
fact that he could go ahead and read it into the record. I do not believe the record shows that.
The Attorney General. Could it now show that?
A Member. I believe at that time we were standing here
and I do not believe that they were taking it down. It may be that the reporter has it down
there, but I wanted to be sure about that before you went away. Do you remember that?
The Attorney General. Oh, yes.
The President. Is that statement as you remember it?
The Attorney General. Yes.
The President. Is that consistent with you recollection?
Colonel Royall. I recall that the Attorney General or someone
for the prosecution made that statement.
The President. We could not find it this morning and we
2965
did not want to
let the Attorney General get away before we were sure that that appeared in the
record as being agreed to by all concerned.
A Member. I understood that Colonel Ristine has said
somewhere that he was going to read that into the record, or, at any rate, I
called attention to that at that time, and we agreed that he could read it into
the record in that way, and I think the record ought to show that, because you
had an objection to its being read in otherwise.
Colonel Royall. That is exactly as we recall it.
The Judge Advocate General. Now that the Commission is opened, I notice
that I failed to submit the notes that I made.
I would like to have those go in at this time.
The President. That can be corrected in that respect, if
that is your remembrance of it.
(There was a discussion off the
record, after which the following occurred:)
The President. I am going to take the responsibility at this
moment of declaring a recess until 2 o’clock.
I have in mind at that time, if there is nothing to be taken up with
either side, declaring an adjournment, while we are considering the case fully,
so that the prisoners can be returned, and I am sure there will be no objection
to your departure then. I would like you
to return at 2 o’clock. As far as the
Attorney General is concerned, we will accept his departure with regret.
Thank you very much for your part in
the whole case, Mr. Attorney General.
I do not think there is anything now,
since we have been
2966
assured of the
agreement on the record that we need do in your presence.
The Attorney General. I appreciate that very much.
(There was a discussion off the
record, after which the following occurred:)
The President. We will recess until 2 o’clock.
(Thereupon, at 12:57 o’clock p.m., a
recess was taken until 2 o’clock p.m. of the same day.)
2967
AFTER RECESS
The commission reconvened at 2:24 o’clock p.m., at the
expiration of the recess.
The President. The Commission is open.
Colonel Munson. The full personnel of the Commission, the
eight defendants, and the reporter, are present. The prosecution staff is present except the
Attorney General and Mr. Rowe.
The defense staff is fully present.
The President. The prosecution and the defense having
nothing further to offer, the Commission is closed.
(Whereupon, at 2:25 o’clock
p.m., the Commission was closed.)