World War II Treason Cases (Tokyo Rose, Nazi Plotters) and Gadahn
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The Bush administration has recently decided to try Adam Gadahn, an American citizen, for treason, for making tapes for Al Quaeda. Gadahn, 28, of Santa Ana, California, was indicted last Wednesday by a Federal grand jury for allegedly making tapes that called for the death of Americans and for attacks on United States targets.
Mr. Gadahn, aka "Azzam al-Amriki" (Azzam the American), grew up on a goat farm in Orange County, California. He praised the 9/11 attacks as "the blessed raids on New York and Washington". On one tape, he is actually introduced by Ayman al-Zawahiri, Osama bin Laden's second in command. He stated that "the streets of America shall run red with blood". There's a million dollar reward, from the Rewards for Justice Program, for information leading to the arrest and conviction of Mr. Gadahn. Deputy Attorney General Paul McNulty believes there is a solid case for treason, a charge that has not been brought for over 50 years, for World War II defendants.
In this episode, I will discuss the treason cases arising out of World War II and give my understanding, as an ordinary citizen just trying to understand the law, of what the government has to prove in the Gadahn case, based on these cases. Three of the cases relate to Nazi Germany (Cramer v United States, ex parte Quirin and Haupt v United States), and two relate to Japan (Tokyo Rose and Kawakita).
First, what is treason? Treason happens to be the only crime that is explicitly defined in the Constitution. Article 3, Section 3 states:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
The Framers were afraid that a tyrannical executive (the King of England) could arbitrarily define the crime to include anyone the king wanted to condemn, and therefore they set a high standard of proof. The government needs to establish an overt act, in the presence of at least two witnesses, evidenced in open court. In addition, relatives of the accused are not supposed to be tainted by the treason verdict. This proved to be at issue in one of the cases - Haupt v. United States - which centered on the father of one of the persons convicted of treason.
World War II, as I mentioned in the episode about whether or not we are at war, was the last war where the United States followed the Constitutional procedure for declaring war. Japan attacked us at Pearl Harbor, Roosevelt asked Congress for a formal declaration of war on December 8, 1941, Congress approved the declaration, Germany then declared war on us, and we declared war on Germany. So we were officially, legally, and constitutionally at war with both Nazi Germany and the Japanese Empire - official state enemies with soldiers in uniform.
The cases related to Nazi Germany are Cramer v. United States, ex parte Quirin and Haupt v. United States. The cases centered around Operation Pastorius, a failed attack by Nazi Germany on the United States, staged in June, 1942. Eight Germans who lived in the United States, Ernest Burger, Herbert Haupt, George John Dasch, Edward Kerling, Richard Quirin, Heinrich Heinck, Hermann Neubauer and Werner Thiel, were recruited for the operation, masterminded by Admiral Canaris, the head of the German Abwehr, their Secret Service. They were smuggled into the United States on two U-boats, the U-202 and U-584. Their mission was to sabotage United States hydroelectric plants at Niagara Falls, ALCOA plants in Illinois, Tennessee, and New York; locks on the Ohio River near Louisvill, Kentucky, a cryolite plant in Philadelphia, Pennsylvania; Hell Gate Bridge in New York, and Pennsylvania Station in Newark, New Jersey.
Two of the Germans, Dasch and Burger, decided to back out of the mission and turned the others into the FBI. Eventually all 8 were arrested and put on trial by a special military court - something like the military commission that Bush got - in Washington, DC. All 8 defendants were found guilty and sentenced to death. FDR commuted Dasch's sentence to 30 years and Burger's sentence to life. The other 6 defendants were executed on August 8, 1942, in the electric chair of the District of Columbia jail and buried in a potter's field in the Anacostia section of Washington, DC. This was the largest legal mass execution in United States history. In 1948, President Truman commuted the sentences of Dasch and Burger, deporting them to the American zone of occupied Germany.
The three cases arising from Operation Pastorius may give some hints as to what the government needs to prove in the Gadahn case. In Cramer v US (1945), Anthony Cramer, a friend of two of the conspirators, had had a "few drinks" with them. He apparently was not aware of the plot. Although he had sympathy for the Fatherland, and had traveled to Germany for the 1936 Olympics, it was not clear what his sympathies to the Nazi regime lay. He was tried for treason, sentenced to life imprisonment, and made to pay a $10,000 fine. The Supreme Court, on appeal, ruled that these facts were not enough to support the crime of treason.
In Haupt v United States, Hans Haupt, the father of Herbert Haupt (one of the executed conspirators), was also convicted for treason, sentenced to life imprisonment, and made to pay a $10,000 fine. He had lent his son money, helped him purchase an automobile, and helped him get a job at the Norden bomb sight factory. In this case, the Court affirmed the conviction.
In ex parte Quirin,(ex parte means that the matter only concerns one side - Quirin - as opposed to the traditional plantiff v defendant format), the Supreme Court ruled in 1942 that the conspirators could be tried before a special military court. This ruling has been cited by the Bush Justice Department lawyers to support these special commissions.
The Tokyo Rose case shows how the media and propaganda machine can construct a story. You see it all the time - a movie that's "inspired by a true story" or "based on a true story". It's difficult to separate fact from fiction. The Japanese certainly broadcast US-English radio shows, intended to sap the morale of our troops, during the war. One of the broadcasters, Iva Toguri d'Aquino, a Japanese-American, had the misfortune of visiting Japan at the time of the attack on Pearl Harbor. She was visiting relatives. Stranded in Japan, needing work, and not speaking Japanese, she answered an ad for an English language typist for Radio Tokyo. Eventually she became an announcer for The Zero Hour, a radio program produced to demoralize our troops. She was one of a group of 12 announcers.
Iva consistently denied that she was a disloyal American. She never renounced her US citizenship. The US military investigated her immediately after the war and did not find any evidence of treason. However, Walter Winchell, a US radio personality, lobbied for putting her on trial for treason. In 1949, she was tried, on the basis of testimony of two "witnesses" (remember, according to the Constitution, you need two witnesses), and convicted. Her sentence was 10 years in prison. She served 6 years.
In the 1970s, information came out that the two witnesses lied. President Ford pardoned her on his last day in office. Iva Toguri d'Aquino died on September 26, 2006, at the age of 90.
Tomoya Kawakita, a Japanese American, was the last person tried and convicted of treason in the United States. He was convicted in 1952. He tortured American POWs as an employee of a Japanese mining company. He was sentenced to death. President Eisenhower commuted his sentence to life imprisonment in 1953. In 1963, President Kennedy, during the closing of Alcatraz prison where he was serving his sentence, pardoned him and deported him to Japan.
What can we conclude from all of this? Treason is difficult to prove, the facts and the result don't appear to be consistent, and the punishment (it's anywhere from 5 years in prison to death) seems arbitrary. Witnesses can be suborned and coerced. The media, as illustrated by the Tokyo Rose case, can whip up a frenzy. In the case of Mr. Gadahn, it seems unlikely that any al Quaeda operatives that might have witnessed his overt acts will testify in open court. With the special military commissions, they won't have to.
I have a modest proposal. Declare all the Guantanamo detainees enemy combatants. Line them against a wall and shoot them. Don't tell anyone. That will save us taxpayers a lot of money. Based on the laws recently passed, it appears that this is totally legal.