 |
||||||||
 |
||||||||
|
||||||||
|
'Enemy combatant' born on beach in '42
By DAVID BALLINGRUD, Times Staff Writer
A hatch opened. Four men emerged and made their way toward shore. Edward John Kerling, Werner Thiel, Herman Otto Neubauer and Herbert Hans Haupt planned sabotage -- terrorist attacks -- on the United States of America. When they reached the beach, they buried explosive detonators in the sand, to be retrieved later. They were the second of two waves; a few days earlier four saboteurs had come ashore on Long Island. In less than two months, they would be betrayed, caught, tried in a specially convened military court and convicted, their appeals heard and rejected in a special session of the U.S. Supreme Court. Six of the eight were put to death; two went to prison. Nations at war have little interest in the civil rights of spies and saboteurs. But the 60-year-old story does not end there. One of the executed saboteurs, Haupt, was a U.S. citizen, and his ghost is haunting civil libertarians today. On May 8, another U.S. citizen arrived in this country, on a flight from Zurich, Switzerland, into Chicago's O'Hare International Airport. Jose Padilla, a former Chicago gang member who had done jail time in Florida and converted to Islam, wanted to build and explode a dirty bomb in the United States, the government says. Unbeknown to Padilla, he was accompanied by FBI agents. They grabbed him walking off the plane with a reported $10,000 in his pocket. Today military authorities are holding Padilla in a brig in Charleston, S.C. The government has not charged him with a crime and says it might never do so. It is not allowing him to see a lawyer or stand before a judge to contest his detention -- rights provided U.S. citizens under the Constitution. Attorney General John Ashcroft said Padilla traveled to Afghanistan and Pakistan, and on several occasions met with senior al-Qaida officials. He "trained with the enemy, studying how to wire explosive devices and researching radiological dispersion devices." Padilla was held as a "material witness" until June 10, when the government, relying on the 1942 Supreme Court ruling that doomed the saboteur Haupt, labeled him an "enemy combatant" who has forfeited the rights of citizenship. Padilla's case troubles civil libertarians, who found less to argue with in the federal charges brought against Zacarias Moussaoui, the alleged 20th hijacker, or John Walker Lindh, an American captured with al-Qaida fighters in Afghanistan. They say the government is using a weak legal argument to damage bedrock constitutional protections, among them the "great writ" of habeas corpus, the legal principle that allows Americans into court to challenge the legality of their arrest. Padilla, who has taken the name Abdullah al Muhajir, "is a U.S. citizen. That means a lot," says Robert Levy, a constitutional scholar at the Cato Institute, a nonprofit think tank in Washington, D.C. "When it doesn't any longer mean a lot, we are in trouble. "Here we have the executive branch declaring that a U.S. citizen can be declared a combatant, that he can be detained without charges, that he can be denied counsel, that he can be prevented from arguing in a courtroom that he is innocent. I think that means a very great deal." Others maintain that the administration has taken the best available option. "Our criminal laws are not designed to fight a war on terrorism," former federal prosecutor Paul Rosenzweig told the Christian Science Monitor. "The government is using the tools that are presently on its books and available, and the fit isn't perfect." But, he said, the approach is appropriate, given the need to protect the nation. "I'm not one to cheer about everything the government does," he said, "but those who think things haven't changed since Sept. 11 are putting their head in the sand." As they approached the Florida and New York beaches in the summer of 1942, the eight German saboteurs were concerned not only about cloak-and-dagger matters, but about their legal rights, too. If captured, they wanted the better treatment and protections given prisoners of war, not the near-certain death that awaits wartime spies. And so, according to an FBI history, they came ashore wearing the military uniforms of the nation that sent them: Germany. Once safely on land, they buried their uniforms with the tools they would use to attack America's war industry, among them explosive timers that looked like pens. Then they donned civvies and struck out for Jacksonville, then Cincinnati, then Chicago. The New York group dispersed and headed for New York City and Chicago. The mission collapsed almost immediately, however, when one in the Long Island group -- George Dasch -- apparently lost his nerve and dialed up the FBI to reveal the plot. In a speech this month, William Rehnquist, chief justice of the United States, said government prosecutors planned to try the men in conventional civil court, but changed their minds when they learned there was a maximum sentence of two years for conspiracy to commit sabotage. They also worried, Rehnquist said, that a public trial would reveal that the eight were not caught through good police work, but because one lost his nerve. Better to put them before a closed military tribunal, they reasoned, and seek the death penalty. With the nation in a wartime mood, President Franklin D. Roosevelt obliged with an executive order authorizing a military court. While the trial was under way, the saboteurs petitioned the U.S. Supreme Court for review, challenging the president's right to put them before this military tribunal. On July 29, 1942, the Supreme Court heard arguments in a special session, and two days later announced its approval of the government's action. The court was not swayed by the saboteurs' uniform gambit. The eight were not "lawful" combatants entitled to the name-rank-and-serial-number protections given prisoners of war. Instead, "those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants." But what about Haupt, who came to the United States as a child and became a citizen when his father was naturalized in 1930? Should he be treated differently from his colleagues? No, the court ruled, using language the Bush administration is relying on today to hold Padilla. The U.S. citizenship "of an enemy belligerent does not relieve him of the consequences" of his actions, the justices wrote. "Citizens who associate themselves with the military arm of an enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents." The court gave a nod to constitutional safeguards, saying they "are not to be disregarded," but came down squarely for Roosevelt. The Constitution imposes on the president an obligation "to take care that the laws be faithfully executed," the justices reasoned, but they added, "One of the objects of the Constitution, as declared by its preamble, is to provide for the common defence." On Aug. 3, three days after the court decided the eight accused men would remain before the tribunal, they were convicted and sentenced to death by electrocution. On Aug. 8 Roosevelt announced two had received clemency, including Dasch, who blew the whistle on the operation. The other six were executed that day, among them citizen Haupt. But administration critics today say at least the eight German saboteurs had their cases heard, not only by the tribunal but by the Supreme Court. Padilla is being held without charge and without counsel. And he is not alone. American-born Yaser Esam Hamdi, captured in Afghanistan and held in a naval brig in Norfolk, Va., is being held without charge or counsel, too. Frank Wilkinson lived through 1942 and has survived to bear unhappy witness to the events of the past year. He recalls another executive order signed by Roosevelt, one that led to the roundup of more than 120,000 people of Japanese descent, most of them U.S. citizens. "I don't know what they have on the dirty bomber, but I know what they had on the Japanese in 1942," he said. "Nothing." Now 87, Wilkinson is a long-time civil rights activist who founded the First Amendment Foundation and made waves fighting McCarthyism and the House Un-American Activities Committee. In 1958, when called to appear before the committee, Wilkinson refused to answer questions on First Amendment grounds and received a prison sentence. Today he scoffs at those who argue that a robust American democracy will shrug off a few constitutional compromises made in the name of the war on terrorism. "People who think that way aren't the people that hold a democracy together," he said. "People lose liberties without even knowing until it is too late. "Listen, in 1942 I was a young man working to prevent segregation of an integrated housing project (in Los Angeles)," he said. "I didn't learn until 1980 -- almost 40 years later -- that because of that housing work the FBI put me under surveillance" in the COINTELPRO domestic counterintelligence program. "Later, after a lawsuit, when they offered to burn their file on me, I found out it contained 132,000 pages, all accumulated without my even knowing it." Kit Gage, coordinator of the National Coalition to Protect Political Freedom, said she hopes the nation "will bounce back quickly from the kind of fear-based response period we're in," but she says some mistakes are harder to undo than others. "There was no quick bouncing back for the Japanese-Americans in 1942," she said. "Decades went by before there was any recognition that serious mistakes were made." And sometimes, she said, the governmental abuses that become public represent the tip of a much larger iceberg. For example, she said, there are persistent reports that the U.S. government has passed some terrorism suspects on to other nations for detention and interrogation. "We may never know what happened with those people," she said. -- Times researchers Cathy Wos and Caryn Baird contributed to this report.
 © 2006 • All Rights Reserved • St. Petersburg Times
490 First Avenue South • St. Petersburg, FL 33701 • 727-893-8111 
|
From the Times wire desk
From the AP |
