Speaking on behalf of the commander in chief, Biddle told the court, “Our whole East Coast is a theater of operations in substantially the same sense as the North Atlantic or the British Isles.”
Countering that Biddle’s notion of “total war” was broad enough to cover any crime by any person committed anywhere in wartime, Royall did his best to fight back. There must be some limit to Biddle’s theory, he said, “or we have very few constitutional guarantees left when we go to war.”
Royall could tell from the justices’ cold reception and hostile questions that he was losing. But he was unaware of something even more dismal: Some of them had already made up their minds. As Justice Felix Frankfurter told his colleagues behind closed doors, Royall’s clients were “damned scoundrels” and “low-down, ordinary, enemy spies who, as enemy soldiers, have invaded our country and therefore could immediately have been shot by the military when caught in the act of invasion.”
Justice Frankfurter did not plan to tie the president’s hands. This was war.
Washington, D.C., Jail
Saturday, August 8, 1942
9:00 A.M.
The clanging of the keys woke George up from a nap. He hadn’t been sleeping well at night ever since the Supreme Court had publicly denied his appeal and sent the case back to the military tribunal. Brief, restless naps were his best chance to sleep.
The provost marshal entered his cell—with a stern look on his face. Despite all of the disappointments and betrayals he’d experienced over the previous months, George still expected to be told that he was a free man; that the tribunal and, in fact, the country, had come to its senses and realized that he was not a spy or a saboteur; he was a hero.
“George John Dasch,” the marshal began, “I am here on behalf of the government of the United States of America to inform you that you have been found guilty of espionage and sabotage and sentenced to thirty years in prison.”
George, arms flailing, began rambling about his family, words sputtering out of his mouth faster than he could control them. The provost marshal turned and left. He couldn’t understand what the convicted spy was saying and, like many before him, he really didn’t care.
? ? ?
The provost marshal preferred the reaction of Peter Burger, whom he found lying in bed reading a magazine. When told he would spend the rest of his life in prison, Pete looked up, said, “Yes, sir,” and went back to reading the Saturday Evening Post.
? ? ?
The other six defendants were not so lucky. The provost marshal entered each of their cells and recited the same line: “You have been found guilty of espionage and sabotage and your sentence is death. Your execution is scheduled for later today.”
Among the six who received that news was Herbie Haupt, a twenty-two-year-old American citizen, who had recently written a letter from prison to his parents in Chicago.
Please don’t judge me too hard.
While I was in Germany I worried night and day wondering how you were getting along. I tried to get work in Germany but I could not, and when they told me that they had chosen me to go back to the United States you don’t know how happy I was. I counted the days and hours until I could see you again and probably help you.
Dear Mother, I never had any bad intentions. I did not know what a grave offense it is to come here the way I did in wartime. They are treating me very well here, as good as can be expected.
Dear Mother and Father, whatever happens to me, always remember that I love you more than anything in the world. May God protect you, my loved ones, until we see each other again, wherever that may be.
Love, your son, Herbie.
Washington, D.C., Jail
Saturday, August 8, 1942
3:30 P.M.
Guards strapped Herbie Haupt’s hands and feet to the electric chair and attached electrodes to his head and leg. A switch was flipped. His body tightened, trembled, and, sixty seconds later, relaxed.
Washington, D.C., Jail
Wednesday, August 12, 1942
When FBI agent Duane Traynor walked into George’s cell, he saw a thinning, pale man—a shell of the excitable and talkative optimist he’d met a month earlier.
For a moment George’s eyes sparkled at the sight of the confidant he had once trusted, the partner he had once believed to be his friend. They’ve finally come to let me out.
Those sparkles turned to tears when he realized that Traynor was only there to say good-bye.
New Hampshire
August–October 1942
The Supreme Court’s decision had been announced in July, but the more complicated task of explaining in a written opinion why the president had not violated the Constitution still lay ahead. It would not suffice to simply quote the old Latin maxim Inter Arma Silent Leges: In a time of war, the laws are silent.
Alone at his summer home in New Hampshire, Chief Justice Harlan Stone was rereading the attorney general’s legal brief. He was searching for sound legal reasoning to support the court’s decision. But Stone wasn’t finding what he wanted. “I certainly hope,” he told his clerk, “the military is better equipped to fight the war than it is to fight its legal battles.”
Finally, though regretting that “the opinion was not good literature,” Stone sent a draft to his colleagues, who unanimously signed onto it.
But what other choice did they have? By then, four of the justices had doubts about their decision, but six men had already been executed as a result of it.
Atlanta
Wednesday, November 3, 1943
The psychiatrist typed his report slowly. “The prisoner has an obsessive, compulsive, neurotic personality type. He complains of depressive trends, nervousness, insomnia, and vague pains. He repeatedly stated that he did not mind being in prison but that he was hurt by the way it was done; that he has terrific prejudice and anger and that he feels he cannot go on long this way.”
A few miles away, the prisoner—the one with a silver streak running through his black hair—wept quietly to himself.
Washington, D.C.
December 1971
J. Edgar Hoover sat down at the large desk in his dark office. It was just over a week before Christmas, his fifty-second at the FBI. It would be his last.
On his desk were two stacks of Christmas cards, one with the notes he would read, and one, a much larger stack, with the notes his secretary assured him he could ignore.
Near the bottom of the larger stack was a holiday card that had come virtually every year since 1948, when Peter Burger and George Dasch were granted executive clemency by President Harry Truman and deported back to Germany.
“Merry Christmas,” it said. “Yours, Peter Burger.”
EPILOGUE
2001–2004
Just a few months before the attacks of September 11, 2001, a twenty-year-old American citizen named Yasir Hamdi ran away from home. A devout Muslim, he had been told wonderful things about the Taliban from his friends and religious leaders, but when he’d arrived at a Taliban training camp in Afghanistan that summer, he quickly realized it had all been lies. He soon became disillusioned and, after just a few weeks, left the camp.
On his way home, Hamdi was arrested by Afghan warlords, who told their American allies that he was a Taliban fighter. The American military labeled Yasir Hamdi an unlawful enemy combatant and detained him: first in Afghanistan, then in Guantanamo Bay, next in Norfolk, Virginia, and finally on a naval base off the coast of South Carolina.
Hamdi told his captors that he was not an enemy of the United States and believed that a trial would exonerate him. For years the United States held him without charge, arguing that, as an enemy combatant, he was not entitled to due process.
Finally, in 2004, his case made it to the U.S. Supreme Court, where his attorney argued that, as a U.S. citizen, his right to a jury trial was guaranteed by the Constitution.
The government’s case was made by the Solicitor General of the United States. He reminded the justices of an obscure legal precedent decided in 1942, when eight Nazi saboteurs had tried to make a similar argument. The government’s brief was forty-one pages long and referred to the saboteurs’ case thirty times.
In 2004, not many people seemed to care that the 1942 decision had been made hastily in the midst of a world war, or that four of the justices regretted their decision before the official opinion had even been released. It didn’t matter because the passage of time destroys context and circumstance the way termites destroy wood: slowly, steadily, and completely.
Yasir Hamdi, thanks in large part to a decision made sixty years earlier, lost his case. He was stripped of his U.S. citizenship and deported to Saudi Arabia in 2004.
9
Who Is Tokyo Rose?
San Francisco, California
July 6, 1949
The courtroom was a marble masterpiece. It covered the walls, the floor, and the round columns that stretched the length of its preposterously tall ceiling. Plump cherubim stared down from the tops of those columns and a gaudy mosaic behind the judge’s desk faced enormous, gilded doors.
Under dim lights that did little to brighten the solemn and austere setting, the only empty seat belonged to Thomas DeWolfe, the tall, balding special prosecutor. As he began his opening statement, he could feel the eyes of the judge, jurors, lawyers, and all 110 spectators boring into him. He could also feel the eyes of the defendant, a plain-faced, simply dressed, thirty-three-year-old woman on trial for treason against the United States of America.
DeWolfe’s voice was strong and confident and echoed off the marble, giving it a larger-than-life feel. “We will show,” he said, “that in one broadcast after the Battle of Leyte Gulf, the defendant told American troops: ‘Now, you boys really have lost all your ships. You really are orphans now. How do you think you will ever get home?’?”
DeWolfe spoke slowly and methodically, in keeping with his personality. The middle-aged lawyer’s style was as modest as the room he worked in was ornate. DeWolfe rarely took time away from work, and on the rare occasions he did take a vacation, he preferred to be alone. His work was his life, and his trial skills were second to none. What Thomas DeWolfe lacked in charisma he more than made up for with clarity and credibility.
“We will show that the defendant told American troops that their wives and sweethearts were unfaithful,” he continued. “That they were out with shipyard workers with wallets bulging with money. That she told them to lay down their arms. And that the Japanese would never give up and had the will to win.”
DeWolfe paused to look at the defendant. Her tan plaid suit was old and out of style. Her face was pale and expressionless. He wondered if the jury would ever believe that the petite woman before them was the infamous Tokyo Rose. She didn’t look much like the woman whose seductive voice had been broadcast by Radio Tokyo all across the Pacific, hypnotizing the minds of Allied troops with Japanese propaganda, making them homesick, telling them that defeat was inevitable, and sometimes driving them to desertion or suicide.
“We will show that she talked about the mosquitoes and the jungles, and when she heard some troops were short of food, she told them they should go home where they could get steak and French-fried potatoes.”
With every new accusation, DeWolfe’s tone became sharper, giving the impression of increasingly greater disgust and outrage. He never raised his voice; that was not his style. But he wanted—he needed—the jury to hate this woman. They had to see her as a California-born Benedict Arnold who verbally tortured and tormented America’s brave sons and husbands who were off fighting for their freedom. He needed them to see that words could be just as savage and destructive as guns and bombs.
Only then would they convict Iva Toguri.
Only then would they convict a woman who Thomas DeWolfe knew was innocent.
New York Times, February 14, 1943
The men often tune in on Radio Tokyo to hear the cultured, accentless English of a woman announcer they have nicknamed Tokyo Rose. Tokyo Rose pours it on so thick that the little company of Americans in a submarine far from shore who hear her usually get a lot of humor out of her broadcasts.
Tokyo, Japan
August 25, 1943
The English-born major was tall and, despite the hunger that had left him ill and emaciated, still remarkably handsome. He had been the Edward R. Murrow of Australian radio before the war began, but he’d been captured in Singapore after volunteering to leave the broadcast booth in favor of combat.
After a Japanese officer inferred that he could choose between being executed or working for Radio Tokyo, Major Charles Cousens agreed to write the script for an evening show called Zero Hour.
That didn’t mean, however, that he would write it the way they wanted. Even with his life on the line, Cousens was not about to be a pawn for the enemy. He tried his best to keep the program free of propaganda while undermining the Japanese war effort by using the English-language show to entertain Allied troops.
So far, it was working. The two POW hosts of Cousens’s Zero Hour—an American named Wallace “Ted” Ince and a Filipino named Norman Reyes—read the “news” they were given by the Japanese so fast that it couldn’t be understood. They repeated inside jokes that the Japanese didn’t understand and that brought laughter rather than fear to Allied listeners. They filled most of the program with lively music—peppy marches and fun, popular songs—while telling their Japanese overseers that the music would demoralize Allied soldiers by making them homesick. Inexperienced in American media, unable to understand the subtleties of the English language, and willing to defer to Cousens’s talent for attracting an audience, the Japanese staff at Radio Tokyo did not interfere much with Zero Hour’s programming.
As Cousens sat in the POW’s small common room at Radio Tokyo putting the finishing touches on that evening’s script, he heard a friendly, upbeat voice from the doorway.
“Hey, boys,” the stranger said. “How ya doin’?”
The smiling woman at the door appeared to be Japanese, although her accent was definitely American. She was short and wore glasses and looked almost as malnourished as the POWs, yet her voice exhibited an energy that was missing among the Americans. She was looking at them like they were the first friendly faces she’d seen in years.
“My name’s Iva,” she said, shaking Cousens’s hand, and then the hands of the two show hosts.
Cousens introduced himself but was careful not to say too much in the presence of a Japanese stranger. His caution, however, did nothing to slow the conversation, because the newcomer was more than happy to do all the talking.
“I was born in Los Angeles and I only ended up here by accident. See, my mother asked me to go to Tokyo to visit my aunt Shizuko, who was sick. But I hated it here right away. I tried to find a way home to L.A., but the government kept asking me for more and more paperwork and then they took forever to approve it. Once Pearl Harbor happened it was too late—and so here I am.”
Cousens and his two hosts stared at her blankly. It was as though she’d kept all of this information bottled up inside her and it was now all spilling out. They offered little encouragement, no nonverbal feedback like smiles or nods of the head, but Iva kept talking anyway. She told them about the life she missed in America, the postgraduate classes she’d taken at the University of California, Los Angeles, and how she passed the time watching college football and horse racing at Santa Anita. But now, she explained, her life in Japan was completely different.
“One time the secret police knocked on my door at three in the morning. Scared me half to death! They told me how I would be so much safer if I dropped my American citizenship. See, my parents were born in Japan, and so I’m entitled to be a citizen here as well. But, honestly, I’d rather be interned as an enemy here than be a subject of the emperor. That’s exactly what I told them.”
Iva explained that she’d moved into a boardinghouse so that her aunt would not be subjected to the suspicions and harassment that came with sheltering an American citizen. Since she refused to renounce her American citizenship, the Japanese had also taken away her ration card, forcing her to share the meager provisions of other boarders. Needing a job to survive on her own, she’d found work two days ago as an English-language typist at Radio Tokyo.
Then, as quickly as she’d arrived to spill out her life story, she was walking back out the door.
“You look hungry,” she said to Cousens. Then she smiled and whispered, “Tomorrow I will bring you some apples.”
Tokyo
Three months later: October 25, 1943
“This week it’s apples, eggs, some flour, and a bushel of vegetables!”
Every weekend, Iva walked more than ten miles to buy and barter for food and medicine at farms in the countryside. She was particularly proud of the haul she’d just acquired.
“Any medicine?” asked Cousens. Iva’s pro-American attitude and willingness to smuggle things into Radio Tokyo had eventually won Cousens’s trust. He regularly took some of the provisions back to Camp Bunka, where he lived with twenty-six other POWs, many of them sick and starving.
“Some quinine and aspirin,” she said. “And a few vitamin pills.”
“You’re a lifesaver, Iva. And I don’t just mean that as an expression.”
Cousens had spent the last few months admiring Iva’s willingness to risk her own safety to smuggle food and supplies for others. Over time he had grown to trust her enough to explain to her their ongoing scheme to sabotage the Japanese propaganda.
“Why not share the plan with her?” he’d said to his skeptical cohosts at the time. “She’s one of us.”
Tokyo
November 12, 1943
“You have to bring in another announcer for a new ‘homesicky’ segment,” George Mitsushio told Charles Cousens.
Mitsushio was a fat thirty-six-year-old who’d been born in San Francisco but had chafed at the discrimination he’d encountered. In the 1930s he had immigrated to Japan and, after Pearl Harbor, chose his adopted country over the United States. He had officially become a Japanese national seven months earlier.
Given the circumstances, Mitsushio was, at least according to American law, a traitor for having served the Japanese government in various attempts at propaganda for seventeen months before renouncing his American citizenship. He was also, at least nominally, Charles Cousens’s boss, although he generally let the Aussie do anything he wanted when it came to Zero Hour.
“This is an Imperial Order,” Mitsushio persisted. “It has got to be done.” Slicing his hand across his throat, he added, “If not, it is my neck as well as yours.”
“All right,” said Cousens, who was already formulating a plan. “We’ll see what we can do.”
As soon as Mitsushio left, Zero Hour announcer Ted Ince turned on Cousens. “What the hell do you mean, ‘we’?” Ince said. “I want no part of this!”
“Hold your horses,” Cousens calmly assured him. “This is our chance to make a complete joke of Zero Hour.” Cousens knew the Japanese wanted a segment that would make Americans miss all the things they loved most about America. He knew he’d have to come up with something that would sound authentic to the Japanese while making American troops laugh. The idea he was about to let Ince in on had come to him a few nights earlier.
“How?” Ince asked.