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Six months after Pearl Harbor, in June 1942, eight German saboteurs, all of whom had lived in the United States, were dropped off by U-boats on the shores of Long Island and northern Florida. Their orders were to attack factories, destroy railroad installations, bomb Jewish-owned department stores and generally create terror.
Shortly after their arrival, Dasch, one of the would-be saboteurs, with the connivance of another, went to Washington and reported the plot to the FBI. Soon, all eight were caught. J. Edgar Hoover held a press conference lauding the FBI’s successful efforts. He did not mention Dasch’s assistance.
President Roosevelt demanded swift and severe punishment. “The death penalty is called for by usage and by the extreme gravity of the war aim and the very existence of the American government.”
There were problems, however: two of the Germans claimed American citizenship, their lawyers understandably wanted a public trial and the evidence was not overwhelming since no acts of sabotage had actually been committed.
The solution was a presidential proclamation establishing a military commission under the laws of war. The tribunal was to be held in secret. Evidence would be admitted if it had “probative value to a reasonable man.” A two-thirds majority was sufficient to issue a verdict and impose sentence, including death. The President would make the final decision after receiving the commission’s report. There would be no appeal and no access to civil courts.
Colonel Kenneth C. Royall and another military attorney were appointed to represent seven of the defendants. Royall opened his defense with a statement calling the commission “invalid” and “unconstitutional.” Despite the proclamation’s prohibition against seeking redress in the civil courts, Royall, with the acquiescence of the President, brought an emergency habeas corpus application in the Supreme Court. Roosevelt told Attorney General Frances Biddle that he would ignore the writ if it were granted, a threat communicated to the Court. The Court denied the writ.
After a four-week trial, all eight defendants were convicted and sentenced to death, with a recommendation that the sentences of Dasch and the other cooperator be commuted to life imprisonment. Six were electrocuted. Dasch’s sentence was commuted to 30 years, his collaborator’s to life imprisonment. Prior to their deaths, the defendants thanked counsel and said their representation was “better than we can expect and risking the indignation of public opinion.” Royall was later appointed Secretary of War by President Truman.
There will be no Colonel Royall at today’s military tribunals — nobody to challenge the validity of the proclamation or seek relief in the federal courts. The rules concerning counsel for the Guantanamo commission make it near-impossible for a defense attorney, civilian or military, to provide a zealous defense or to act ethically.
The rules of the military commission themselves are stacked against the detainees. To be sure, there is written into the rules a presumption of innocence, a beyond a reasonable doubt standard of conviction, a right not to testify without an adverse inference, and a requirement of a unanimity for a death sentence. On the other hand, the standard of evidence is amorphous (“evidence [that] would have probative value to a reasonable person”), a guilty verdict may be decided by a two-thirds vote, and there is no guidance as to when the death penalty is appropriate
Civilian counsel may be hired at the detainee’s expense but these counsel must be able to obtain “secret” security clearances. Counsel must consent to sign agreements to comply with all applicable rules under penalty of criminal prosecution. Secret proceedings may be held where civilian (but not military) defense counsel may be excluded. The rules preclude counsel from seeking relief in civilian courts, speaking to the press without pre-approval of the Defense Department and entering into joint defense agreements. And, perhaps most troubling, they require counsel to waive confidentiality and agree that all attorney-client conversations be monitored “for intelligence purposes.”
The leaders of the NACDL have for some time been considering what position to take concerning recruitment of civilian counsel for the military commissions. We have considered such alternatives as soliciting our members to act as civilian counsel for the detainees or even forming a task force of volunteers to act as counsel. The American criminal defense bar has a tradition of representing the despised ever since John Adams in 1770 represented the British soldiers accused of the Boston massacre. After all, if we do not provide counsel to the most unpopular, who will?
In view of the extraordinary restrictions on counsel, however, with considerable regret, we cannot advise any of our members to act as civilian counsel at Guantanamo. The rules regulating counsel’s behavior are just too restrictive to give us any confidence that counsel will be able to act zealously and professionally.
Perhaps a new Colonel Royall will prove us wrong.
Note: The material concerning Col. Royall is based primarily on Glendon and Winfield, Colonel Royall Vigorously Defended Saboteurs Captured on U.S. Shores, N.Y.S. Bar Journal, February 2002, and Cohen, The Keystone Kommandos, Atlantic Monthly, February 2002)