Cass Sunstein

DATE February 13, 2002 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Gary Cohen discusses the 1942 attempted invasion of the
US by German saboteurs that set the precedent for war tribunals
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

Many Americans aren't aware that eight German saboteurs landed on American
beaches during World War II with the mission of crippling US industry. The
mission was a spectacular failure. At the order of President Franklin Delano
Roosevelt, the men were tried by military tribunal. In fact, that's the
precedent the Bush administration has cited for the use of military tribunals
today for the Taliban and al-Qaeda detainees. My guest, journalist Gary
Cohen, tells the story of the German saboteurs in a article called The
Keystone Kommandos published in the February edition of The Atlantic Monthly.

Let's start with the acts of sabotage the Germans had planned.

Mr. GARY COHEN (Journalist): Just around Pearl Harbor, the Germans had
planned--they had studied American war efforts so carefully and minutely, they
knew exactly that our Achilles' heel was the transportation of coal from the
mines in West Virginia and Pennsylvania to the steel mills in Pittsburgh. So
their thought was if they could blow up those railway lines that connected the
coal mines to the steel mills, then the US wouldn't be able to build tanks,
airplanes, ships. So they trained men in sabotage efforts; specifically how
to blow up railroad bridges, railway lines, hydroelectric plants, aiming for
the hydraulic electric plant in Niagara Falls, which would have served the
Northeast, as well as the hydroelectric plants in the Tennessee Valley, which
would have covered the South and Southeast.

So they knew that if they could take out the electrical plants, and they knew
if they could take out the railway lines, the Eastern seaboard would be
crippled, we would not be able to manufacture anything for the war and that
they could win. So the only thing missing were to find the men that could
pull such a job off. So they were...

GROSS: I just want to add here that you say that they also planned to bomb
Jewish-owned department stores just to terrorize people.

Mr. COHEN: Right. That was sort of their Achilles' heel. We sort of joked
that Jewish-owned department stores is redundant. In the 1940s, I guess the
bulk of the department stores were Jewish. All they wanted to do was send a
message; I guess, `We were here.' It's interesting, it's just, again, the
parallels to September 11th. It wasn't like they were supposed to leave
notes, `This was planted by the Nazis,' they were just going to create terror
and havoc and I guess erode America's self-confidence in 1942.

So the plan was to train men how to blow up these bridges and factories and
plants, so they set up--they took an estate just west of Berlin, and from the
front of the road all you could see was a stone house, but in back was a camp
that was set up with miniature railroads and miniature bridges, and the men
were trained exactly how to blow this up with the least amount of effort, and
with dynamite that was disguised. In the case of the railway bridges, the
idea was to make dynamite that looked like coal. They would then throw the
coal into the railway cars, the coal would be stoked into the furnace and then
the railway would just blow up. Nobody would know if the railway blew up
because of sabotage or just because of, say, a faulty engine. So the Germans
were smart like that.

GROSS: Who was the brains behind this outfit? Who organized it?

Mr. COHEN: Sure. It was a man named Walter Kappe who had been a German
immigrant, moved to Kankakee, Illinois, and then moved to Chicago and then
during the Depression, I think, realized that America wasn't the place to be,
so he moved back to Germany and became instrumental in the early years of the
Nazi Party. And it was his knowledge of America--and the other thing that the
Germans were aided by was there was an intensive German-American community in
cities like New York and Chicago. The hope that the Germans in Germany had
was that they would be aided by these people. And it's funny, because the
neighborhoods are still standing. The German American community centered in
New York around East 86th Street and Third Avenue, and in Chicago in what's
called Old Town, North Avenue.

And so the hope was that the Germans in Germany would have agents living in
New York and Chicago that could help them--basically what we would call today
as cells.

GROSS: And what was the approach to recruiting men to actually invade
America?

Mr. COHEN: They wanted men who could pass, who had lived here in America who
they didn't have to train how to be American, necessarily. So the first group
of eight men had all come over here in the '20s, had all gone through the same
experience Kappe had where during the Depression they weren't getting jobs,
they were being laid off. And in the late 1930s, the German government
offered a repatriation program. Anyone who wanted to come back to Germany was
given a one-way boat ticket back.

So all eight of these men had lived here, worked as things like janitors,
elevator operators, waiters, cooks. So didn't exactly rise in America. But
when they got over to Germany, they found that it wasn't much better. They
ended up all working at a Volkswagen factory, or running the film projector
for propaganda films. So that's why the idea of luring men to go back to
America, I think these men were probably disillusioned with what they saw in
Germany as well, and they kind of welcomed the chance to go back to America.

GROSS: Let me see if I get this. These were Germans who had come to America
because they couldn't find work in Germany; they didn't find very good work in
America, either, so through this repatriation program, they went back to
Germany, and then they became spies and were sent back to America.

Mr. COHEN: Right. And the other cue was that they had lived in America long
enough so that nobody would look at them and--this is back to the old posters
we remember seeing of `Loose Lips Sink Ships.' They wanted men who could pass
for American.

GROSS: So who was the first recruit who actually became the leader of the
first group to come over to the United States for the sabotage?

Mr. COHEN: The leader was a man named George John Dasch, who had stowed away
on a ship to come to New York in the 1920s, worked as a waiter, ran a house of
prostitution for a while on Long Island; married a beauty operator. And when
his mother came to visit him in the late 1930s, she was just full of stories
about how everybody in Germany had a job, everybody worked at a factory, and
she hated the idea of her 36-year-old son still working as a waiter, so she
convinced him to move back to Germany.

Dasch moved back, and then Dasch was ordered to report to an office. The
German Abwher, which was the equivalent of the CIA, had--when these men had
signed up for the repatriation program, they also left an extensive paper
trail that the German government then poured through, found that Dasch had all
these qualifications and signed him up to be the first recruit on this spy
mission. This was around October, November '41, so we weren't at war yet, but
I guess everyone sensed war was imminent.

GROSS: Now what...

Mr. COHEN: And once we entered the war, that's when this training program
started.

GROSS: Who were some of the other recruits? And were they up to the job?

Mr. COHEN: No. I think...

GROSS: Were they good at being spies?

Mr. COHEN: No. We have almost this sense of Teutonic efficiency and order.
Maybe it's just from watching too many movies or something. The Germans, in
Germany, were actually very organized and very methodical in plotting the
sabotage. It's just that the men that they picked were kind of lackluster.
They were all, like I said, in their mid to late 30s, disillusioned with jobs
as waiters and cooks, but never really ambitious, never really climbed the
ladder. So when somebody said, `Do you want to get on a submarine back to
America?' they all--also, most of them were unmarried and none of them had
kids, so there was nothing keeping them back in Germany. And the German
government pretty much strong-armed them and said, `Show up for this mission.'
They felt almost proud to have been picked. But they weren't the hard-core
Nazis, the brown shirt, the heel-clicking German soldiers that we think of. I
think these were more just guys in the German middle class.

GROSS: The German government made these saboteurs sign contracts. What did
the contracts say?

Mr. COHEN: They said that if they were to be killed on this mission, then the
German government would give their widows a predetermined amount of money.
They wanted the widows to marry within a year to keep up the pretense. And
they said if they were successful in sabotage and blowing up America that
after the war, they would all be guaranteed good jobs. And in the case of one
job, the contract said--it guaranteed a man who had studied to be an optician,
that they would give him his own factory.

So again, not the greatest incentive to want to risk your life, but I think
these men figured they had nothing else. It was either that or serve in the
German army and go to the front, go fight Russia, so these men chose the
submarine.

GROSS: This contract also said that they were obliged to keep this mission a
secret for the rest of their lives, and if they spoke about it to anyone, what
would happen?

Mr. COHEN: They would be killed, their families would be killed. Again,
it's almost out of a movie. The threats sounded almost too good to be true.
But the men signed it.

GROSS: So after the training, two U-boats with four would-be saboteurs in
each boat headed to the United States. Where did they land?

Mr. COHEN: One U-boat landed just west of Amagansett, Long Island, about 90
miles from Manhattan, and the other in Ponte Verda Beach, Florida, which is
just south of Jacksonville. They arrived about two weeks after leaving
France.

GROSS: They left from France?

Mr. COHEN: Yeah, the west coast--Germany had taken over France by that time,
and so the U-boat launching site was on the very western tip of France,
Bordeaux.

GROSS: How far did they get in their mission?

Mr. COHEN: Well, it depends. They landed. They landed without much effort,
especially the team in Florida, it was as easy as landing the U-boat about a
hundred yards from shore, being set out in a little rubber pontoon boat, and
the men arrived, buried their dynamite in the sand, waited until daybreak and
then just played in the surf--played football or whatever you play in the
water in the mornings--got on a bus, went to Jacksonville and then got on a
train to Chicago, where they all had friends and family. Nobody spotted them,
and if anybody saw them they would just think they were four friends
frolicking in the surf.

The Long Island crew had a little more problem. As soon as they landed, or a
couple minutes after their rubber raft hit the shore, a 21-year-old Coast
Guardsman named John Cullen was on his round. At the time, our idea of
homeland security was to have Coast Guardsmen carrying a flashlight walking up
and down the beaches. There was no military presence on the beach, or at
least not where these men were in Long Island. So the Coast Guardsmen seized
them, asked them, `What are you doing here?' This was around 2 in the
morning, in June, and because the men were trained in English, one of them,
Dasch, (unintelligible) the leader of the group, said that, `We're fishermen.
We've run aground. We'll wait here until daylight.'

All that sounded fine until the two men in charge of rowing the rubber boat
started hollering at each other in German. That's when Cullen realized that
these were actually German soldiers. And then Dasch and Cullen--Dasch offered
to bribe Cullen. He said, `I'll give you $300 if you basically look the other
way and don't report this to anyone.' Cullen took the money and then ran back
to his Coast Guard station, `We've been invaded. We've been invaded.' The
men at the Coast Guard station were also equally--I don't know if ill trained
is the word. They'd never shot a rifle before, but they had rifles at the
Coast Guard station. Cullen said later he was afraid that they would all end
up shooting each other, rather than the Germans.

So the Coast Guardsmen come back to the beach, but it was so foggy they
couldn't find the men. But eventually they did find the dynamite, because one
of the men had left basically a German hat and a wool bathing suit that they
knew had been left by the Germans. It turned out later it was left on
purpose. One of the Germans wanted to leave a clue. They wanted to get
caught.

But while Cullen and his men were combing the sand with their rifles, the
Germans had crawled through some dunes, along a road, and then found the Long
Island Rail Road, all the tracks into the tiny town of Amagansett, and were
just sitting, waiting patiently for a train. The train came in around 6:40 in
the morning and took it into Jamaica Station on Long Island where the train's
new transfer from diesel train to electric. So by the time the FBI and the
Army and everyone were notified that we'd been invaded, the men had already
changed trains and gone into Manhattan. It would have been impossible to find
them.

GROSS: But two of them actually wanted to get caught. Why?

Mr. COHEN: They decided, I think, in retrospect, they probably knew all
along, or at least during the U-boat, that this mission could never have
worked, that four men could not have taken down the Niagara Falls power plant
or the Hell Gate Bridge, the giant railroad bridge that connects Manhattan
with New England. And also they were given $90,000 by the Germany government,
which is the equivalent, we figured out, of almost a million dollars today.
They were given the name of a handler that lived in Hoboken, New Jersey, a
priest who they said was a German spy, but there was nobody waiting for them
in Amagansett. There was no, I guess you'd say now, adult supervision of
these Germans. They were completely on their own. And so by the time the
U-boat landed, they just realized, `This will never work.' And also these men
had lived enough in America so they knew actually what they were coming back
to, and maybe actually spending some time back in Nazi Germany they may have
realized America wasn't so bad after all.

GROSS: My guest is journalist Gary Cohen. He writes about the 1942 German
sabotage plot in the February edition of The Atlantic Monthly. More after a
break. This is FRESH AIR.

(Soundbite of music)

GROSS: In this month's edition of The Atlantic Monthly, my guest, Gary Cohen,
writes about a 1942 German plot to cripple American industry. Eight German
saboteurs landed by U-boat on two American beaches. The plot was foiled by
two of the saboteurs.

So two of the guys in the boat that landed on Long Island wanted to get
caught.

Mr. COHEN: Right.

GROSS: They did what afterwards?

Mr. COHEN: Then they all came into Manhattan, like I said. So as the FBI is
realizing we've been invaded, the men who had been on the U-boat for two weeks
took some of their $90,000 and showed up at the Automat in Herald Square, and
because they hadn't eaten in two weeks, they started ordering everything out
of the machines. I don't know if your listeners remember Automats, but these
were these early vending machines, where you would put in a quarter and get a
full chicken dinner or a piece of pie. So these men went wild at the Automat,
then they went to Macy's right next door and bought all new clothes, because
they had none, and they basically had fun in America.

And then that night, or the next day, two of the men, George Dasch and another
man, Ernest Burger, actually had a frank talk. And they both realized that
neither of them wanted to go through with this mission, so eventually Burger
and Dasch decided to form their own team, stay away from the other two men who
they weren't sure which side they were on, I guess is the way to say it. And
then on Thursday--so the men had five days in New York where they did nothing
but eat, shop, go to jazz clubs and then hire hookers. With their $90,000
they were basically having the time of their life. They were in no rush to go
back to Amagansett and pick up their dynamite and everything that they had
left.

So on Thursday Dasch took the train down here to Washington, checked into the
Mayflower Hotel, and on Friday morning he picked up the phone and just asked
information to connect him with the FBI. And he said, `I just landed my
U-boat in Amagansett and I want to turn myself in.' Well, the FBI normally
has a desk for what they call nut cases, but because they...

GROSS: Yeah?

Mr. COHEN: Yeah, and I'd seen one--you know, this is where people call and
say, you know, `I'm Cleopatra' or something. So they would have treated Dasch
like a nut, except the FBI knew that we had been invaded in Amagansett. I
don't think in a million years they thought the Germans would actually show up
in Washington and just call the FBI's main number and turn themselves in. So
Dasch said, `I'm here at the Mayflower,' the FBI came to get him, and they
kept him for about four days, interrogating him about everything that the
Germans had planned for the US. In this interrogation, Dasch told them how to
find the other seven men--he knew where the other men were staying in New
York, and he had a sense of where in Chicago the Jacksonville crew would be
going.

So the FBI rounded up the other seven men while Dasch is being interrogated,
then finally they told Dasch, `Because of all the work you've given, we will
get you a presidential pardon.' Dasch said later they even promised him a
ticker tape parade to be an American hero. But they said, `We're going to
arrest you and you have to pretend that you're part of this group, too, and
then in a couple months--you'll go through the whole process and then we'll
spring you.' So Dasch agreed to this oral promise of a presidential pardon.
He was arrested along with the others. And then history kind of conflicts
itself. Dasch was never given a presidential pardon. He was arrested and
tried, like all the others, in a military tribunal.

GROSS: Now why did Roosevelt create a military tribunal for these eight
German saboteurs? And I ask that in part because, you know, the Bush
administration has cited the FDR decision to create this military tribunal as
a precedent for the Bush administration to create military tribunals for the
detainees from al-Qaeda and the Taliban.

Mr. COHEN: Right. Well, in 1942 we were officially at war; we were six
months into war. And there were precedents set in both the Civil War, and
even as far back as the Revolutionary War that said if anyone is caught for
espionage or sabotage, then the president has a way of pulling them out of the
normal civil court procedure and trying them in a military tribunal. The key
for both the 1942 tribunal and today's tribunal is secrecy. The reason
Roosevelt was so hell-bent on having a military tribunal was everything would
be kept secret until after the war. What they didn't want Germany to know was
both how unguarded our shores were, how easy it would have been to land a
U-boat, as well as the fact that the Germans actually just showed up at the
FBI and basically turned--one of them turning himself in. They wanted the
message to be that the US picked these men up. They joked that Hoover wanted
it to sound like maybe he had been standing at the shore when the U-boat
landed, and nothing could be further from the truth.

GROSS: So secrecy was very important.

Mr. COHEN: Right. And the whole tribunal was kept secret until about a 18
years after the war, or at least until after Roosevelt died.

GROSS: So nobody knew what had really happened until 18 years afterwards.

Mr. COHEN: No, but Hoover had taken...

GROSS: I mean nobody in the public anyway.

Mr. COHEN: Nobody in the public. But Hoover had taken the initiative with
the press, and the front page of every paper across country was, you know,
Eight Nazi Saboteurs Arrested. What they did is they fudged the dates. They
made it sound like--they didn't give the exact date that the men landed, so it
sounded like they were arrested on the shore. And the plan--I should back up,
but the plan for Germany was to start sending a U-boat every six weeks. There
were men already still back at that training camp outside of Berlin learning
how to blow up bridges. The plan was, eventually, to move to Chicago--the
head of the organization would move to Chicago, and with the $90,000 George
Dasch was told to buy a farm or a small house in the Poconos. Again, the
proximity to that region of Pennsylvania being all important. So the 90,000
wasn't just to go to Macy's and hire hookers. They actually had a plan to, I
guess, just kind of establish themselves in that region.

GROSS: Gary Cohen writes about the German sabotage plot in the February
edition of The Atlantic Monthly. He'll be back in the second half of the
show. I'm Terry Gross, and this is FRESH AIR.

(Soundbite of music)

(Announcements)

GROSS: Coming up, more on the story of the German saboteurs and the military
tribunal that tried them. Then we talk with constitutional scholar Cass
Sunstein about the precedent set by that World War II tribunal, the precedent
the Bush administration has cited.

Also, music critic Milo Miles on bluegrass musician Ralph Stanley.

(Soundbite of music)

GROSS: This is FRESH AIR. I'm Terry Gross.

We're talking about a German plot to cripple American industry and terrorize
Americans during World War II. In 1942, eight German saboteurs landed by
U-boat on two American beaches. But the plan was foiled by two of the
saboteurs. President Roosevelt ordered the creation of a military tribunal to
try the eight men. Now President Bush is using that tribunal as the precedent
for the creation of military tribunals to try the Taliban and al-Qaeda
detainees.

My guest, Gary Cohen, writes about the German sabotage case in the February
edition of The Atlantic Monthly.

What were the rules regulating this military tribunal?

Mr. COHEN: Well, the men were guaranteed a lawyer. They were given a lawyer.
They decided that instead of trying all eight men, since Dasch and Burger did
work to turn themselves in, they would have their own lawyer, the other six
would have a lawyer. So the men were guaranteed a lawyer and instead of there
being a judge--it was never to be called a trial, it was always called a
tribunal--there were seven judges pulled from the military, and defending the
US was the attorney general at the time, Francis Biddle, and he was assisted
by half a dozen young lawyers, including a very young Lloyd Cutler, who
eventually became Jimmy Carter's chief counsel, Clinton's counsel, and he is
now working with President Bush on advising him on tribunals. So there were
lawyers working for the government and then also representing the saboteurs.

GROSS: Yeah, who represented the saboteurs?

Mr. COHEN: A lawyer named Kenneth Royal, who had, I think, trained at Harvard
Law School. They were good lawyers.

GROSS: What grounds did the defense attorneys use to defend their clients?

Mr. COHEN: Because we were at war, there was a separate set of rules, but
these men--the defense attorneys made the point--and they were right--the men
actually didn't commit any sabotage. Yes, they landed on American shores with
enough dynamite to blow up Niagara Falls, but they never went back to get the
dynamite. They never showed any interest in going back. They argued that
really the only thing they would be guilty of is almost a probably heightened
version of trespassing, you know, arriving on American shores illegally. It's
certainly not like they were caught at Niagara Falls ready to pull the plug.

GROSS: So what were they found guilty of?

Mr. COHEN: They were found guilty of espionage--I'm sorry, of sabotage, which
is a key point. Espionage means spying and sabotage just means blowing up. I
think the whole time--and this is what has come out later--Roosevelt really
pushed this through. No one on the tribunal was going to defy the president.
And also again, we were at war. We wanted to send a message to Germany and to
any of our other enemies, A, that we could capture these men pretty easily,
and also if they're captured, they're sentenced to death. And it did, it
stopped the Germans from sending anyone else over by U-boat, even though it
could have been pretty easy. The Germans had a map--they had already planned
their next few landing places along New Jersey and up in Maine, so the Germans
knew that we were vulnerable, but the fact that we arrested these men and
captured them sort of put the kibosh on any more plans to send U-boats full of
saboteurs.

GROSS: Now Dasch, the guy who led the mission to Long Island and who spoke to
the FBI and ratted out the whole plan, he was told by the FBI that if he kind
of played along, they would eventually give him a presidential pardon, but he
never got that pardon. Do you know why he never got the pardon?

Mr. COHEN: Dasch wrote a book later, and basically it said he was
double-crossed. There was no way an FBI agent in Washington could guarantee a
presidential pardon. Dasch said that Hoover himself guaranteed it, but it's
still not the same. But yet, they did testify at the tribunal. The FBI agent
that offered him the presidential pardon was called by the tribunal and, yes,
they played back everything that the FBI had promised Dasch, which is why at
the end of the tribunal, Dasch and Burger, the man that he had talked this
over with in New York, and who had also cooperated with the FBI in giving
information about the Germans' plans--their death sentences were commuted to
life in prison for Burger and 30 years for Dasch.

GROSS: And how much time did Dasch actually end up serving?

Mr. COHEN: Just about six years. In 1948, after the war was over, a reporter
from Newsweek broke the initial story that we didn't capture these men as soon
as they landed, and he had found the information that they had a week or two
in New York and Chicago of play time. And when that story broke, I think it
was more an embarrassment than anything else, so President Truman ordered both
Dasch and Burger, I guess, deported, out of the country. They left
Leavenworth, were put on a ship back to Germany and you know, basically they
became that book we all read in junior high, "The Men Without a Country."
They were pilloried in Germany for turning state's evidence. So eventually
Burger fled to Spain and Dasch fled to Switzerland.

GROSS: Why did you want to write about this foiled sabotage plan from 1942?

Mr. COHEN: I've always known about the story; it's part of Washington lore,
about the tribunal and eventually their execution here in Washington. But I
think as I started reading, I saw all of the parallels between the men of 1942
and some of the terrorists of September 11th, that you look at some of the
eerie coincidences, like the fact that the men were able to just infiltrate so
easily, that they were given large amounts of cash, and the only difference is
that the men in 1942, you could tell their hearts weren't in it. Maybe the
promise of a job in an optical factory after it was over just didn't hold the
same allure.

Also, these men weren't told to put their lives in danger and the men told the
FBI that they were told in Germany that they would try and limit civilian
casualties. I guess it's hard when you plant a bomb in a department store,
but notice that these activities were really just to shut down an electric
plant or take down a railroad line. They weren't to create the same kind of
terror that the September 11th terrorists--so we started writing the story in
October or November, and around the same time, with President Bush and the
military tribunals, I think it was just a nice stroke of luck that Bush cited
Roosevelt's order just as I was finishing up writing the story.

GROSS: How did you get access to the trial transcripts?

Mr. COHEN: There's one copy in existence. It's at the Franklin Roosevelt
Library up in Hyde Park, New York, and what I did is I spent a week just
reading the 3,000 pages, every day, in Hyde Park. And then here at the
National Archives out in College Park, Maryland, are the actual FBI interviews
with these men before they were executed. So my story is kind of a nice
marriage of the tribunal and the interviews with the men, as well as some old
news clips that I found at the Library of Congress. So I tried to rely on as
many first-person sources as I could.

GROSS: Do you have a favorite part of the trial transcript?

Mr. COHEN: No, I have a favorite clip, though. I grew up in South Bend,
Indiana, and there was an article from the South Bend Tribune where they
polled the readers--`What should we do with these Nazis?' And I think out of
1,050 responses, 1,049 said `These men should be executed,' and one of the
readers sent in some money, said that the men should be fed to Gargantua, a
circus gorilla who happened to be touring South Bend at the time, and he sent
money for Gargantua's funeral because he said, quote, "The men would
surely--that Gargantua would surely die of poisonous eating" after eating the
eight Nazis.

GROSS: Well, Gary Cohen, thank you so much for talking with us.

Mr. COHEN: Thank you.

GROSS: Gary Cohen writes about the World War II German sabotage case in the
February edition of The Atlantic Monthly.

Coming up, constitutional scholar Cass Sunstein discusses the precedent set by
the military tribunal that tried the German saboteurs, and how that precedent
is being used by the Bush administration today.

This is FRESH AIR.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Interview: Cass Sunstein, constitutional scholar, discusses the
constitutional aspects of military tribunals
TERRY GROSS, host:

We just heard about the case of eight German saboteurs during World War II who
planned to cripple US industry. At the order of President Roosevelt, they
were tried by military tribunal. The Bush administration has cited this case
as the precedent for the creation of military tribunals to try the Taliban and
al-Qaeda detainees.

We asked constitutional scholar Cass Sunstein to talk about this precedent.
Sunstein is a professor at the University of Chicago Law School. His latest
books are "Republic.com" and "Designing Democracy: What Constitutions Do."

How would you describe the precedent of this trial?

Professor CASS SUNSTEIN (University of Chicago Law School; Constitutional
Scholar): It establishes that the president of the United States, under
certain narrow circumstances, can bypass the federal courts and create special
military tribunals to try people who have violated the laws of war.

GROSS: What was the grounds that the Supreme Court used in upholding the idea
of military trials?

Prof. SUNSTEIN: The court said that you had to rely on the federal courts if
you didn't have a case involving foreign belligerents. But, the court said,
it's been historically established that if we have unlawful combatants, that
is, people who violated the laws of war by fighting against us not as foot
soldiers in an army, but by coming into the country surreptitiously with plans
to destroy property, if people have done that, then the court said our history
authorizes the president to use these special tribunals.

GROSS: Was that Supreme Court decision controversial in its time?

Prof. SUNSTEIN: You know, this is one of the most interesting undiscussed
issues. So far as I know, it's gotten no attention. At the time, the country
was fully in favor of speedy military tribunals for these Nazi saboteurs. The
Washington Post loved it, The New York Times loved it, the liberal groups
loved it, the conservative groups loved it, everybody loved it. There was
hardly any attack on the use of military tribunals in the 1940s, and the
Supreme Court decision was very widely, not unanimously, but very widely,
viewed with great enthusiasm. So it's quite interesting to figure out the
shift in the 60 years or so, which has made so many people so nervous about
military courts now and so thrilled about military courts then. It's unclear
whether it's because people liked Roosevelt a lot more than they liked
Bush--though they seem to love Bush--or that they like Ashcroft a lot less
than they liked Roosevelt's attorney general, or whether the country's had a
kind of sea change in its understanding of civil liberties since the 1940s.
That's my guess. There has been that sea change.

GROSS: Are there other reasons why you think the whole country seemed to be
behind the military tribunals in the '40s, where there's such division about
it now?

Prof. SUNSTEIN: There seem to be two big differences. One's that in the
1940s the
country really wasn't sure that it was going to survive. You know, we've seen
since Hitler had a globe on which he wrote over North America, `I'm coming.'
And while we didn't know about that globe in the '40s, we knew that our future
was really at risk, and practically everyone had a friend or relative or
someone they knew who was actually fighting or going to be fighting. And for
all the threat we think we're under now, it's really nothing like that. If we
had five or six more attacks like the attack of September 11th, I bet you
military tribunals wouldn't be so heavily criticized as they are now.

The other difference really is that the Warren court revolution happened at
about the same time that the 1960s happened, so we had this--it's a real
revolution in our understanding of civil liberties, where criminal defendants
now have a huge set of rights which they didn't have in the 1940s. The
Supreme Court had done extremely little to protect criminal defendants against
unfairness in the criminal justice process. Now most Americans are really
used to the idea of Miranda warnings and the right to choose a counsel, right
to get a court-appointed counsel if you don't have any money, and in the
1940s, you know, even with Roosevelt as president, and people who, for their
time, were quite liberal, they were not so concerned about ensuring full and
fair trials as everyone, really, is now.

GROSS: Now how obscure was this trial? I'm, I'm sure, one of the many people
who were surprised to read about it and who hadn't heard of it before.
Obviously at least one person in the Bush administration knew about it. Is
this considered a landmark, or a pretty obscure case?

Prof. SUNSTEIN: For constitutional lawyers, it is extremely obscure, because
it's an exotic situation that hasn't arisen, really, since the '40s. It's not
taught in constitutional law courses. This is one of those decisions maybe a
little like Jones against Clinton, which get terrific public attention, and
there are headlines, but aren't a big deal in terms of our understanding of
the Constitution until, decades afterwards, the same issue miraculously arises
again.

GROSS: Well, exactly what does this precedent give the Bush administration
the green light to do?

Prof. SUNSTEIN: The Bush administration thinks it gives them the green light
to have military trials for al-Qaeda, and the reason is that al-Qaeda people
have not fought as ordinary soldiers, but have acted as terrorists. And the
Bush administration thinks that this decision says that when you have people
who aren't soldiers but terrorists, you can use military tribunals. And
that's not at all an unreasonable reading of the Quirin case.

Critics of the Bush administration, on the legal issue, say the Quirin case
depended on the fact that there had been a declaration of war. We were at war
according to Congress' say-so. Now the president says we're at war, and
Congress doesn't disagree, but it hasn't declared war. On the other hand,
it's given an authorization to use `all necessary force,' and the president
thinks--and as a technical matter he's probably right--that the authorization
to use force includes within the authorization to do the sorts of things you
do when you are at war. One of those things, according to this great case,
the Quirin case, is that you can have military trials.

GROSS: What precedent did the Quirin case use to build its case on?

Prof. SUNSTEIN: There wasn't much. The Quirin case didn't have any Supreme
Court decisions to rely on. It did have a bunch of practices; that is, the
executive--president--had long asserted the power to use military tribunals in
cases where they were necessary, going back to George Washington himself, who
used kind of built-up courts to try people. So the court relied on
long-standing practice in the executive branch and a bunch of lower-court
cases which had said the same thing.

GROSS: Six of the eight defendants in that trial of the German saboteurs from
the 1940s got the death penalty. That's another issue that has some resonance
for today's military tribunals. Will there be the possibility of the death
penalty? And if so, how will Americans and how will other countries around
the world react to it? Because the death penalty is controversial here; the
death penalty has been outlawed in some countries around the world.

Prof. SUNSTEIN: Yeah. The president appears to want to make the death
penalty available as an option. There's been informal discussion of requiring
unanimity for any conviction if someone's going to be killed as a result of
the conviction. That's probably the least we can do, yes? If you're going to
put someone to death, you want to make sure that the tribunal is unanimous. I
do think that a lot of people who are sympathetic to what the president has
done would be nervous about imposing the death penalty without really ample
procedural safeguards, including some sort of right to appeal. There hasn't
been much discussion of right to appeal, but if there's going to be a death
penalty, there probably ought to be some extra party making sure that the
person isn't being convicted when they didn't do anything wrong.

Internationally, this is pretty complicated, because other countries won't
extradite people to the United States, usually, if they're subject to the
death penalty, because they think the death penalty is barbaric. So if we
impose the death penalty, we're not going to be terribly popular with some of
our allies for a day or two.

GROSS: Do you think that it's possible that the Supreme Court will be called
in to make a decision on today's military tribunal?

Prof. SUNSTEIN: It's possible. A lot of law professors think Quirin was
wrong. I confess I'm not one of them, but this was a wartime decision, and
there are lots of wartime decisions that the Supreme Court isn't so excited
about after war. And the Supreme Court is highly likely to be asked by any
self-respecting defense counsel to strike down the Bush military order. It's
unlikely, just as an off-the-cuff prediction, that the Supreme Court would
intervene. On the other hand, it's a little more likely than that the court
would intercede in the 2000 presidential election, and they did that.

GROSS: Right. So there's no predicting anymore.

Prof. SUNSTEIN: No.

GROSS: Well, Cass Sunstein, thank you so much for talking with us.

Prof. SUNSTEIN: Thank you very much.

GROSS: Cass Sunstein is a professor at the University of Chicago Law School.
His latest books are "Republic.com" and "Designing Democracy: What
Constitutions Do."

Coming up, Milo Miles on the Down From the Mountain Tour, featuring the
musicians on the sound track of "O Brother, Where Art Thou?" This is FRESH
AIR.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Analysis: Popularity and history of American folk music
(Soundbite of music)

TERRY GROSS, host:

The sound track from the Coen brothers' Depression era movie "O Brother, Where
Art Thou?" has sold more than four million copies. This unexpected surge of
interest in American roots music prompted many of the performers on the sound
track to go on the road together for a 12-city tour known as the Down From the
Mountain Tour. Critic Milo Miles caught up with the tour in Boston.

(Soundbite of music)

Unidentified Group #1: (Singing) There's a dark and a troubled side of life.
But there's a bright and a sunny side, too. Though you meet with the darkness
and strife, the sunny side you also may view. Keep on the sunny side, always
on the sunny side. Keep on the sunny side of life. It will help us every
day, it will brighten all the way, if we'll keep on the sunny side of life.

MILO MILES reporting:

The Down From the Mountain show lasted for three hours, but it was like a barn
dance that should never end. It was a night without amplifiers or even drums,
but lots of action because the personnel on stage kept changing. The lively
Nashville Bluegrass Band and Dobro ace Jerry Douglas backed up a bunch of
performers from Norman and Nancy Blake to blues player Chris Thomas King. You
got "Hickory Wind" from Emmylou Harris. You got Alison Krauss and Union
Station, the smartest contemporary bluegrass band. Ages range from the
charming pre-pubescent gospel trio The Pizelle Sisters to the septuagenarian
Ralph Stanley, easily the most eminent bluegrass singer in the world.

Such a refreshing show prompts questions. Why does old-timey music, mountain
music or whatever you want to call it, keep coming back? And just what is the
nature of its appeal? First, old-timey music has made its biggest resurgences
when it was most forgotten and least visible on the national scene. Song
collector Harry Smith's "Anthology of American Folk Music" appeared in 1952
when the average music fan had never heard country blues, bedrock gospel or
mountain ballads. The anthology had a potent influence on the folk revival
movement of the late 1950s and early 1960s. In 1973, with nobody looking, The
Nitty Gritty Dirt Band released a triple album set called "Will the Circle be
Unbroken." And the counterculture generation was turned on to a brace of
hard-core country, bluegrass and folk performers from earlier generations.
And now just a bit more than 25 years later, you have the surprise success of
"O Brother, Where Art Thou?" just when most people had no way to hear that
type of music anywhere. And if you haven't heard old-timey songs, they can
set off an earthquake in the brain.

So what is the profound appeal? A common explanation is that these songs are
handmade, down to earth, not products of the big media machine, and by
extension, that old-timey songs have honesty, authenticity, forthright beauty
and clear values missing from modern pop. But that's too simple. "Pretty
Polly" and "Oh, Death," both sung by Ralph Stanley in the Down From the
Mountain show, are as grim and violent as gangster rap.

(Soundbite from "Oh, Death")

Mr. RALPH STANLEY (Singer): Oh, death. Whoa, death. Won't you spare me over
till another year? Well, what is this that I can't see, life's cold hands
taking hold of me? Well, I am death, none can excel. I'll open the door to
heaven or hell. `Oh, death,' someone would pray, `could you wait to call me
another day?' The children prayed, the preacher preached, time and mercy is
out of your reach. I'll fix your feet so you can't walk. I'll lock your jaw
so you can't talk. I'll close your eyes so you can't see. It's very dark.
Come and go with me. Death, I come to take the soul. Leave the body and
leave it cold. To draw up the flesh off of the frame, the earth and worm both
have their claim. Oh, death...

MILES: The pervasive murder, calamity and unrelieved suffering on many of
these songs outline a world just as uncertain as our own, and a whole lot more
impoverished. You can hear how the old-time religion soothed these lives. A
more certain source of mountain music's appeal is that the best storytelling
is more forthright and clear than you hear nowadays. The job is to make
characters and situations come alive. The whole idea of self-expression is
downplayed. Yet the stories are riddled with symbols and signs, mysterious
turns of thought, praise and events that keep people coming back fascinated.

There's a famous quote from Bob Dylan that goes, "Traditional music is too
unreal to die. It doesn't need to be protected. Nobody's going to hurt it."
The originators of old-timey music were more familiar with the unknown on an
everyday basis than we can be now. They think in myths and religious parables
we barely remember. But whenever the strongest of these old songs return, it
is impossible not to believe them.

GROSS: Milo Miles lives in Cambridge. The Down From the Mountain Tour ends
next week in Berkeley.

(Credits)

GROSS: I'm Terry Gross.

(Soundbite of song)

Unidentified Group #2: The lonesome sound of the train going by makes me want
to start off and cry. I recall the day that you took away. I'm blue and I'm
lonesome, too. Well, when I get that lonesome thought I want to pack my
suitcase and go. The lonesome sound of the train...
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.