Transcript

260:

The Facts Don't Matter
Transcript

Originally aired 03.12.2004

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Full audio: http://tal.fm/260

Prologue.

Ira Glass

From WBEZ Chicago, it's This American Life, distributed by Public Radio International. I'm Ira Glass.

Howard Stern

I give up. I mean, I want to leave the radio. The government is closing in on me. They've already won. They've got these broadcasters in such a snit that they're hitting buttons on me. And I'm not--

Renee Montagne

--firing people.

Ira Glass

Like a lot of you, I switch back and forth between Howard Stern and Morning Edition every morning. The Howard Stern, NPR crossover audience exists everywhere. Here in Chicago, it's 10,000 people a day, an equal number of men and women, average age in their 40s, good incomes.

And in the last two weeks, as Congress has moved forward with bills raising FCC fines from tiny to a half million dollars each, Howard has been kicked off six stations owned by the conglomerate, Clear Channel. And Howard has told his audience that, because of the fines, he might be off the rest of his stations soon. And how you see all of this really depends on how you frame the issue. Howard Stern frames it as a simple, First Amendment issue. He's not going too far, the government's going too far.

In the news media, this story has often been framed as, kind of, wacky news. There goes that crazy Howard Stern, running his mouth again, getting in trouble. Maybe there's some theoretical First Amendment issue here, but this guy, in this guy's case, he definitely goes too far. He's crazy.

I have to say, this seems like the least useful way to view this story. For one thing, it's just weirdly condescending. For some reason, lots of people get this strange condescending tone when they talk about Howard Stern. And, most importantly, it sidesteps the bigger issue, which is that, for better or worse, what we're witnessing here is a real sea change in how government is regulating radio and television, making it much easier to revoke station's licenses for indecency, fining the actual people on the air up to a half million dollars. You may like that. You may not like that. But let's acknowledge what it is and talk about it like adults. It'll change the environment, even for what we do here on This American Life.

One of our contributors, Sandra Tsing Loh-- maybe some of you have heard about this in the media already-- has already been fired from the public radio station that used to run her comments every week, under a so-called zero-tolerance policy. This is a big change.

Though, fascinatingly-- again, it all comes down to how you frame what the issue-- when I talked to the head of the congressional committee that's behind the fines-- this is Fred Upton of Michigan, a congressman-- he framed the whole thing much differently. He downplayed all of this. He said it is much simpler. It is much smaller and, at its heart, it's completely uncontroversial, the way that he frames it. This is actually one of the arguments that got the new fines approved by the House, overwhelmingly, 391 to 22. That argument is, Congress isn't doing anything fancy or radical here, Congress is just bringing the FCC fines up-to-date with the times. That's it.

Fred Upton

The fines were peanuts. And, in fact, at some of the hearings that we held, we learned that the Justice Department has actually balked at collecting the fines because it often costs more to them to saddle up their attorneys and to go file that claim in Federal Court than they're going to recoup in the payment of that fine.

Ira Glass

The activist groups fighting for the fine say that what all this is about is kids, protecting kids. Brent Bozell heads the Parents Television Council, one of those groups. A quick warning that, in this little snippet of tape, he and I discuss an adult sex act very, very briefly, so protect your kids. Mr. Bozell and I don't need a half million dollar fine each.

Brent Bozell

If there's one thing that is upsetting is the assault on the innocence of children.

Ira Glass

And what harm does it do? For example, one of the fines that Howard Stern is facing from the FCC is for talking about or referring to anal sex on his show. If a child were to hear him refer to that, what harm does that do, specifically? How do you envision the harm of that?

Brent Bozell

Well, first of all, there is right and there is wrong, two concepts that are utterly alien to Howard Stern. There is also the idea that a child, a young child, ought not to have messages of anal sex or any other kind of sex. They can't comprehend these notions. They can't understand these notions fully.

Ira Glass

Right. But if they don't understand it, then how does it actually hurt them?

Brent Bozell

No, they don't understand it in its fullest. It's a simple proposition, my friend. These are adult messages being addressed to children.

Ira Glass

I think the people who disagree about all this are never going to see eye to eye. I kept asking Brent Bozell to explain this part of the whole issue that I've never understood, which is, what was the big deal about Janet Jackson's breast? What harm did it do to anybody, young or old, to see that for a moment? He said that kids would imitate it in school. That was the harm. But, of course, if that were true, why haven't we seen a rash of playground shirt tear-off offenses? You know?

And, in a sense, it doesn't really do any good to talk about this stuff because you just go around, and around, and around. And, on this issue and on most issues, we're never going to have a meeting of the minds because we don't even agree what the issue is. Is it First Amendment rights? Or is it children's innocence? Is gay marriage a question of the Bible or of equal rights under the Constitution? Iraq, the deficit, in the end, because we don't agree on what the issue is, the facts don't matter.

Well, today on our program, we have two stories about this, of people in a situation where the facts don't matter. Act One is about something that happened during World War II, where the government covered some things up and the facts only came out much later. Act Two happens right now, during the presidential primaries. Stay with us.

Act One. Straight Eyes On The Quirin Guys.

Ira Glass

Act One, Straight Eyes On The Quirin Guys.

Three weeks ago, in Washington, military officials announced that two men with ties to Al Qaeda, one suspected of smuggling weapons, the other of spreading propaganda, will be tried outside US Civil Court in military tribunals.

And, if you've been paying attention to the debate over these tribunals, you may have heard reference to a Supreme Court case, which the Administration uses as the legal precedent for their existence, it's called the Quirin case. The original Quirin decision involved eight Nazi saboteurs who snuck ashore on Long Island, in Florida back in 1942. With Quirin, the Supreme Court changed what had been the law until that time. The Supreme Court said that it was now OK to try enemies captured on US soil in military courts not civilian courts.

But a look back at the facts of the original case reveals a rather more complicated story, part spy thriller, part farce. When you look at the facts of the story, it's not only unclear whether they support the policies of our current administration, but whether they even supported the original decision. Chris Neary reports.

Chris Neary

What the Quirin decision has come to stand for and what actually happened in the case have grown so far apart it's probably best to start with the facts. Here's what everyone agrees on.

On June 13, 1942, on a beach in Amagansett, Long Island, four men dressed in Nazi uniforms rowed ashore with a huge cache of weapons. By sheer chance, they were stumbled upon by a 21-year-old Coast Guardsman named John Cullen. Cullen, who's still alive and living in Virginia, declined to be interviewed on the radio, but he did talk with Michael Dobbs, a reporter for The Washington Post who's written a book about the case called, Saboteurs: The Nazi Raid on America. Dobbs says Cullen remembers the night vividly.

Michael Dobbs

It was a very foggy night, the night of June 13, 1942. He walked, I guess, about a half a mile along the beach when he saw two men pulling a little rubber dinghy in from the sea, which was very unusual because there was a blackout. People shouldn't have been out that late at night.

He went up to one of the men, asked him what he was doing. The man said he was fishing. The man had a strong German accent, so Cullen immediately started getting suspicious. The men were also drenched, so Cullen suggested they come back to the Coast Guard station with him. And the men refused, and that's when he really started getting suspicious of what was happening.

Chris Neary

Cullen would have had to have been pretty suspicious to fully imagine the situation he found himself in. The men he found on the beach had come from a German U-boat still 200 yards offshore and stuck on a sand bar.

For the last two months, they'd been trained in the art of espionage at a secret camp disguised as a farm in the German countryside. In their pockets were sea-soaked lists of key factories and bridges along the Eastern seaboard. If they successfully completed their mission, the aluminum industry, relied on in making things like tanks and planes, would be crippled.

There were eight men all together: four that night on Long Island, and four still on another U-boat preparing to land off the coast of Florida. And though they were all foreign spies, they were all very familiar with the United States. Most of them had left Germany in the '20s, had come to America looking for jobs. But when jobs dried up in the Depression, they'd returned to Germany, leaving behind wives, girlfriends, and family.

Michael Dobbs

Many of them had personal problems that they wanted to resolve. For example, the leader of the Florida group, Eddie Kerling, who was probably the most fanatic Nazi of all eight saboteurs, he had not only a wife in the United States, but he also had a mistress. So when he got back to New York, he quickly set up meetings with his mistress in Central Park. And he was about to meet his wife the day he was arrested. So, even in his case, he had mixed motives for coming back.

Chris Neary

For any of them, was sabotage their first motivation when they came over?

Michael Dobbs

I think that many of them simply wanted to get back to America.

Chris Neary

We know this about how committed they were to their mission. That night, on the beach in 1942, though they were under orders to kill anyone they encountered, instead, George Dasch, the leader of the group, handed the young Coast Guardsman $300 and told him to get lost while the rest stood by and did nothing.

Then, before authorities arrived, the Germans had time to dig a hole, hide their explosives, and walk to a commuter train station, where they hopped a train to New York, but not to commit sabotage.

Michael Dobbs

They had spent the last few months, in some cases several years, in Nazi Germany where there was nothing to buy in the stores. They had $100,000 in their pockets, which is the equivalent of over $1 million today. So, when they got back to the United States, the first thing that came to their minds was to go on a shopping spree. And the first thing they did was to head for Macy's.

Also, Dasch loved a place called Horn & Hardart. I guess Horn & Hardart was the McDonald's of the time. It was the largest fast food operation in the world at the time. It was an Automat, so you put in your nickel and you got out a cup of coffee, or a piece of pie, or a sandwich from a bank of dispensers. And he loved to go to that place. They had many assignations at the Horn & Hardart.

They also visited a lot of movie houses. And, in Dasch's case, he'd been a waiter. And he spent some time with his old waiter buddies at a waiter's club in New York.

Chris Neary

Dasch spent two days and nights playing cards to calm his nerves while he hatched a plan. He was deciding how to give himself up. During training sessions in Germany, he thought he might have detected that another man on the mission, Peter Burger, shared his feelings about defecting.

One night, while the two saboteurs were having dinner in a posh New York restaurant with the money they were supposed to be using for the mission, Dasch decided to risk revealing his intentions to Burger. "There's something I need to tell you," Dasch said. "I know what you're going to tell me," Burger answered. "And I'm quite sure our intentions are very similar."

In choosing eight spies for its first espionage team, Germany managed to select, not one, but two who wanted to defect. They struck a deal. Burger would occupy the other men on the mission while Dasch figured out the best way to give them up. And you might think Dasch had the easier of the two jobs, but he soon found out that, even when you're a spy trying to give yourself up, the FBI is not an accommodating organization.

On June 14th, just a day after landing, Dasch called the FBI office in New York saying he had statements of military and political importance to make. Immediately, he was transferred to something called the "nutters" desk and forgotten. Undeterred, Dasch got on a train and traveled to Washington, determined to turn himself in directly to FBI Chief, J. Edgar Hoover. But, in Washington, this Nazi traitor, who really did have statements of military and political importance to make, was only slightly more successful.

Duane Traynor

He first called the FBI headquarters and wanted to talk with Mr. Hoover.

Chris Neary

Here's Duane Traynor, now a dapper 94-year-old living in a retirement home in Springfield, Illinois. But, at the time, a 35-year-old special agent in FBI headquarters when Dasch tried to turn himself in.

Duane Traynor

The [? officiant ?] Secretary says, what do you want to talk about? It has something to do with sabotage. Well, that's in Mr. Ladd's department. The [? officiant ?] secretary then wanted to know what he wanted to talk about. It was sabotage. And the call was referred to Mr. Russell Kramer. The same thing went on. What do you want to talk about? Sabotage. They said, well, that's Mr. Traynor's section. And they referred the telephone call to me.

Chris Neary

Dasch told Traynor everything, that the other sub had already landed in Florida, that the two teams were supposed to rendezvous in Chicago, and that they planned to target US aluminum factories.

But Dasch didn't confine himself to just the mission. He was a talker. A team of six secretaries took turns transcribing Dasch's rambling testimony. Traynor ended up staying with Dasch overnight in a hotel to get everything. He came away with 240 pages of information about, among other things, the state of Nazi Germany, Dasch's service in the US Army, and a laundry list of his remarkable personal ambitions. The only thing Dasch didn't claim expertise in, in fact, was the thing he'd been sent to do: spy. For example, he'd paid so little attention to his mission that he couldn't remember the name of one of the men he was supposed to be in charge of.

Duane Traynor

Dasch had a little trouble with the name of one of the individuals. He couldn't remember it at first, except it was to say, T- The- The-, something. So I took out a Washington telephone book and started reading the names of all the people whose names started with T. And I kept going down the list. Finally, I got to the name Thiel, and he said that's it, Werner Thiel.

Chris Neary

And for a trained spy, well, he was no James Bond.

Duane Traynor

I said, is there any way you can get in touch with the leader of the other group? And he said, well, yes. I had him write the name of somebody on a handkerchief. And he picked the hankie out of his pocket. And the name of this individual and his address is written in secret ink on this handkerchief. And I said to him, well, how do you develop it? And he said, I can't remember. He says, it was some smelly stuff.

Chris Neary

Crack scientists back at the FBI lab determine what that mysterious smelly stuff was: household ammonia. George Dasch is one of the great enigmas of this story, not because he didn't talk about his reasons for doing things-- he did, a lot-- but because it's hard to believe him. He said that he hatched a plan to defect way back at the secret training camp in Germany. He said many times that, when Hitler declared war on America, I declared war on Hitler. But grandiose statements like that made people suspect less pure motives, especially for a man who had already betrayed one country.

At the trial, the government argued that Dasch didn't decide to defect until much later, and then only because he was scared. Whatever the case, he clearly didn't consider himself a Nazi saboteur. Again, writer, Michael Dobbs.

Michael Dobbs

He thought that, if he went to the FBI, turned himself in, they would welcome him with open arms and allow him to launch a propaganda campaign by radio against Hitler. So he imagined a starring role for himself.

Chris Neary

But J. Edgar Hoover had other ideas. On June 27, 1942, The New York Times headline read: "FBI Seizes Eight Sabateurs Landed by U-Boats Here and in Florida to Blow Up War Plants." The article doesn't mention that the FBI was only able to crack the case because one of the saboteurs literally walked into their headquarters to confess. This is the first moment in this adventure where the official story diverges from the facts, and for decades the two don't find their way back to each other.

Lloyd Cutler

The FBI decided the case would be conducted in secret before a military commission.

Chris Neary

Lloyd Cutler's been a White House Counsel for two presidents, helped ratify the SALT II Treaty, and negotiated with Iran during the hostage crisis. He's the kind of guy that, when reporters ask to talk with him, his secretaries ask, regarding which famous case? His first one came 60 years ago, when he was appointed to the legal team prosecuting the Nazi saboteurs.

Lloyd Cutler

Of course, the decision to have a military commission was the President's decision under our Military Code of Justice. And the reason it was all done in secret was because we had a dirty, little secret of our own. And that was, although the FBI was trying to create the impression that it had itself penetrated the German saboteur school and the German army, and were waiting on the beaches to catch these fellows, the fact is that the FBI knew nothing about it at all.

Chris Neary

So the trial was held in secret more so that the FBI could create an image rather than for national security?

Lloyd Cutler

Correct. And it was not just the FBI, it was President Roosevelt himself, because, remember, this was six months after Pearl Harbor. Half of our fleet had been destroyed. General MacArthur was being isolated on Bataan in the Philippines. And the fact that these saboteurs fell into our laps was the first chance to show that the United States was doing something to defend itself. In fact, at one point, according to the attorney general's memoir-- his name was Francis Biddle-- President Roosevelt said to him, "Francis, you'd better not lose this case." It was clear from the beginning that President Roosevelt had every intention of trying and convicting these fellows before a military commission, and then executing as many of them as he could.

Michael Dobbs

Roosevelt decided at the outset that, as he put it, they were as guilty as can be. He wanted them to be executed. The civilian court would not have returned death sentences against them, so he decided that the matter would have to be resolved by the military court.

Chris Neary

Writer, Michael dobbs.

Michael Dobbs

So the question for Roosevelt was not whether or not they should be put to death, but how they should die. And he had discussions with his aides over whether they should be shot or whether they should be hung. So there was a kind of a bloodthirsty side to FDR. In fact, when he first heard about the arrests of the saboteurs, he told Francis Biddle, the attorney general, that they should be taken around the country in cages and displayed like trophies.

Chris Neary

If anything, this wasn't quite harsh enough for the population at large. An article in Life magazine, entitled "The Eight Nazi Spies Should Die," shows a picture of militia men with rifles who had volunteered their services as a firing squad.

And it's at this moment of heightened national anxiety that the story of the saboteurs drifts still further away from the actual facts. Here's why. People thought they were calling for the blood of Nazi spies but, at least in one case, what they were getting was the blood of a 22-year-old American citizen.

Hans Herbert Haupt, one of the eight saboteurs, had lived in the United States since he was a small boy and, more than anyone, seemed to stumble into this case through a series of unlucky accidents. The misadventures that brought him there began less than a year before the trial, when he was busy chasing girls on the north side of Chicago in his brand-new Chevy, and was known as Herbie to his best friend, Wolfgang Wergin.

Wolfgang Wergin

Herbie and I worked together in a place called Simpson Optical. He was always ready to have fun, to dance, to spend money, especially spend money. He was just a great guy.

Chris Neary

Wolfgang Wergin is 81 years old today, and lives in San Pedro, California. And in a way, his life is a shadow life of what Haupt's might have been. Wergin was intimately involved in the story of how Herbie Haupt ended up on trial for sabotage. And if not for what amounted to one bad job interview, he could have been there on trial with him.

It all started the summer of 1941, before Pearl Harbor, when America still hoped it might avoid a war. On a lark, the two friends took Wolf's 1934 Chevy and drove down to Mexico City. Wolf was 18. Herbie was 21. They had $180 between the two of them, and they spent their time in Mexico blowing through it. During one particularly expensive night of buying rounds for some dates, they ran out. They had to sell Wolf's car just to afford the trip back home.

Wolfgang Wergin

We had enough money to go back on the train. But they wouldn't let us over the border because, in those days, you used to have to have a tourist card. And on the back of the tourist card, my tourist card, which I didn't notice that, but it had a little stamp: intro automobile. In other words, that I had entered an automobile.

And of course, they wanted to know where the car was. And we said, well, it broke down. They said, well, you have to go back and bring it back or prove that you didn't sell it, because they wanted the tax money.

So we just went back to Mexico and told that guy that we were living with, that rented us the room. And he says, oh, that's no problem. He says, I have my friend who's the Chief of [UNINTELLIGIBLE], in Manzanillo, and he'll get you on a boat going to Los Angeles. And then you can hitchhike from there. And then we thought, oh, that was great.

Chris Neary

The two set off for the port city of Manzanillo, and two days later they went to sea aboard a freighter, Wergin says, they thought was bound for California.

Wolfgang Wergin

It was called the Genyo Maru, and it was supposed to go to from Manzanillo to Los Angeles, and from there to Seattle to pick up some more scrap metal.

But about three days later, we talked to the steward and he says, oh, we having trouble. Anyway, we got no answer at all. And then, two weeks later, we were in Yokohama.

[LAUGHS]

Chris Neary

So there they were in Japan, four months before Pearl Harbor. Later on, in trial transcripts, Herbie said he'd gotten on the freighter because he'd heard there was work in Japan, but when he and Wolf arrived they couldn't find any. They went to the US Embassy, but found no help there either.

Broke and not sure where to turn, they finally got work on a German freighter they thought was headed for neutral Portugal. Just a couple of days after arriving in Japan, they found themselves, once again, on the high seas.

Chris Neary

What did you guys think of the United States at that time? What were your feelings towards it?

Wolfgang Wergin

Oh, home. Nothing but home. My parents were there. I had a brand-new drum set that my dad bought for me. We had a little neighborhood band, you know. We used to play for bar mitzvahs and things like that. It was our home.

Chris Neary

And how did Herbie feel about it, about the US?

Wolfgang Wergin

Oh, he was same thing. He was no Nazi. I mean, we had no more interest in politics than the man in the moon.

Chris Neary

The boat sailed down the coast of Africa and around the Cape of Good Hope. And while it did, the home they'd left behind slipped into war. During the time they were at sea, Prime Minister Tojo came to power, Pearl Harbor was bombed, and the US sent fleets into the Pacific.

On the day they hit dry land, more than three months after they'd first set sail, Germany formally declared war on the United States. And unfortunately, they hadn't landed in neutral Portugal, but in the German-occupied French port of Bordeaux.

Not surprisingly, the two men were taken to be Americans and put in an internment camp. After a couple of days, though, interpreters came around and discovered that both Wolf and Herbie had been born in Germany and left for America as little kids. Herbie was sent to relatives in the German town of Stettin, Wolf to his grandparents in Konigsberg.

Wolfgang Wergin

That was funny, too, because they couldn't speak English and I couldn't speak German.

[LAUGHS]

The only thing that my mother ever said to me or I ever said to her was nach de tur: close the door.

Chris Neary

In Stettin, Herbie was contacted by a man named Walter Kappe. Kappe was the head of the espionage program that recruited the saboteurs and sent them to the US. A blustery man full of ideas, Kappe had also spent decades in America before the war and had come back when Hitler came to power. In Herbie, he saw an affable young man, a perfect double agent. In the eager Kappe, Herbie saw a ticket back home.

Herbie sent a letter to Wolf explaining it all and inviting him to Berlin to a meeting in Kappe's office.

Wolfgang Wergin

And we sat down, and he give us this spiel, you know, we would be doing our thing for the Fatherland and that kind of stuff. But it seemed, to me, that he had a dislike for me right from the beginning, maybe because I didn't immediately take to his scheme here. And, for some reason, we just never even considered me being part of it, but Herbie was.

Chris Neary

After the meeting, the two went back to Stettin to talk things over.

Wolfgang Wergin

The last time I saw Herbie was in Stettin. We were at his uncle's house, and we had a little bit of wine and things. And what Herbie told me was that, when he found out that they were going to have this school and they were going to send the saboteurs back to the United States, he said, well, it's great. I can't wait to get back. And I said to him, Herbie.

Now in those days-- we grew up in Chicago-- you've got to remember that the G-men, the FBI, were the big thing. There was Dillinger, they gunned down Dillinger.

And I said Herbie, you're not going to make it. You go back and the G-men is going to get you and put your ass in jail. And he said, no, no, no. I'm going to go over there and I'm going to disappear.

Herbie thought he was putting one over on them. And, for some reason, he was almost jovial. And then he just burst out crying. There was no words. There was just sobs. And I don't know what made him start bawling like that. That's the thing that bothers me today, is why would he, all of a sudden? Was it the fear of going into something that he had no intention of completing? Or was it the fear that what I'd said was probably true, that he would be put in jail? I don't know. The only thing I can say is that I was embarrassed. That's all.

Chris Neary

Embarrassed?

Wolfgang Wergin

I was embarrassed for him.

Chris Neary

Wolf went back to his grandmother's house, where within a week he was drafted into the German army and sent to the Russian front. He spent two years there in slimy foxholes, in some of the bloodiest battles of World War II. Herbie got on the U-boat to America.

There's still a question about how serious he and the other seven saboteurs were in their intention to commit sabotage. And people who've studied the case say that one of them was an ideologically committed Nazi. Three of the men, Herbie, Dasch, and Burger, seemed to have had no interest in the mission, and the rest are anyone's guess. They're described as a not very impressive bunch, in over their heads.

Jonathan Mann

Let's see here. All right. These are copies of the official stenographic transcript of the proceeding before the military commission to try persons charged with offenses against the Law of War and The Articles of War.

Chris Neary

In his office, Jonathan Mann flips through one of his many binders of trial transcripts. Mann got interested in the Quirin case in the early '80s, the result, he says, of a history thesis gone awry. He'd spent years tracking down all the living participants in the case and these formerly secret trial transcripts.

There are 18 binders in all. And reading through them, you get a sense for what the proceedings were like. They were held on the sixth floor of the Justice Department. No press was allowed. Photos from the time show the defendants in the double-breasted suits and two-toned shoes that they had bought on their shopping spree.

Jonathan Mann

And here's Eddie Kerling, Neubauer, Quirin, Thiel.

Chris Neary

They were defended by an army officer named Colonel Kenneth Royall. Colonel Royall didn't relish the idea of defending eight of his country's sworn enemies, but he took his job seriously. And right away, he realized that, if he was after a fair trial for them, he was in the wrong place. In the transcripts, the very first argument he makes to the commission is the same argument that those assigned to defend the detainees at Guantanamo are making today, namely that his clients should be allowed access to civilian courts.

Jonathan Mann

Colonel Royall immediately stands up and he says, "In deference to the commission and in order that we may not waive, for our clients, any rights which may belong to them, we desire to state that, in our opinion, the order of the President of the United States creating this court is invalid and unconstitutional."

Chris Neary

Lloyd Cutler, who was a lawyer with the prosecution, says Royall's arguments fell on deaf ears, which isn't surprising considering who his audience was.

Lloyd Cutler

The judges were seven major generals, of whom only one was a lawyer. And Attorney General Biddle asked the first question of one of the defendants, because all of them took the stand. Colonel Royall, who was assigned to defend those people, stood up and objected that no proper foundation for the question had been laid. He was perfectly right, but under the military procedure, the court adjourned to decide how to deal with the motion.

And they stayed out for 45 minutes, which was just about long enough to smoke a good cigar. And they came back in and they denied the motion. The next moment, the Attorney General asked the second question. Colonel Royall objected a second time. The same thing happened: another 45-minute adjournment. The generals came back: motion denied. And as a result, Royall never made another objection.

Chris Neary

But if the defense could read the writing on the wall, the men they were defending had a harder time. The gulf between the facts as they understood them, and the story that was being told about them was so huge that, while the entire country was calling for them to be executed, they were thinking about their future. Again, writer, Michael Dobbs.

Michael Dobbs

They didn't really understand the extent of the trouble that they were in. After all, they hadn't actually carried out any sabotage against the United States. And at one point, Herbie Haupt said in the trial that the prosecutor asked him whether he said that he had intended to turn everybody in himself. And the FBI said, oh, what would you do then? And he said, well, then I intended to go off on my honeymoon with my old girlfriend from Chicago, who he had, in the meantime, proposed to.

And the prosecutor was incredulous and said, how can you think you'd go off on a honeymoon when you've just admitted to being part of a sabotage mission against the US? And he said, well, if I turned everybody in, there'd be no reason to be guilty of anything, so I could go off on my honeymoon. And I think that reflects the kind of naive attitude that he had to this mission. He thought that, if he cooperated with the FBI, then perhaps they'd hold him for a little bit, but then they'd let him go.

Chris Neary

On July 27th, after making his final arguments before the commission, Colonel Royall sent an appeal to the Supreme Court. That appeal would become the Quirin case. In it, Royall argued that all legal precedent suggested that the saboteurs should be tried in civilian courts.

Under intense pressure from the Administration, the Supreme Court took the highly unusual step of meeting out of session. Three days after hearing arguments, blinding speed for a Supreme Court, the Justices refused Royall's appeal, but they did settle in an even more unusual manner. They offered their decision without any supporting opinions, saying, in effect, it's fine for now. You don't have to free them. We'll explain our reason soon.

But nine days later, long before the opinions could possibly be issued, Roosevelt pronounced the sentences. Dasch and Burger were given long jail time. The other six, including Herbie Haupt, were executed in the electric chair. At the time, most people had no problem with that. And even today, Lloyd Cutler, who was one of the prosecutors, and Duane Traynor, the FBI agent, say it was the right decision. It was wartime.

Duane Traynor

All six of them that got executed, you feel sorry for them. They really didn't want to do it. But they were allegedly trying to hurt the United States.

Chris Neary

They were allegedly trying to do this, but you knew that at least six out of the eight of them really had no intention of doing anything.

Duane Traynor

Oh, it doesn't make any difference. You have to make an example of them.

Chris Neary

Why was it important to make an example of them?

Duane Traynor

Oh, you had to. You know, you're in war. A lot of people in war get killed for no other reason that they're against it. People over there in Iraq are getting killed all the time, but it's war. You have to look at them as enemies. As enemies, you have to deal with them that way.

Chris Neary

The Quirin case authorized this notion of wartime justice, that, in times of war, we don't have the luxury of normal procedures and civil liberties. But it didn't take until the end of the war for the Supreme Court justices, who made the Quirin decision, to start regretting it. Justice Stone had second thoughts the day he sat down to write the opinion for the court in 1942.

Michael Greenberger

It is clear that four of the nine justices, after the fact, believed they had made a mistake and pretty quickly came to the conclusion that they'd been buffaloed into this and regretted what they had done.

Chris Neary

Michael Greenberger, a Law professor at the University of Maryland and head of the school's Center for Health and Homeland Security, has studied the Quirin case.

Michael Greenberger

Justice Black, in memos to other justices, for example, said that he felt as if he were involved in a meat market slaughtering cattle, and that it was a lesson to him that you could never decide a case by an order and then sit down and write out why you decided the case the way you did, that the writing itself evinces issues that you don't think about when you're just deciding thumbs up or thumbs down. So there's every sign that, if they'd given themselves the time to think it through, the decision would have been different, and they would have ruled that these people should have been tried in a civilian court, and this precedent wouldn't even exist.

Chris Neary

Because of the special history of the case, the fact that it was written in haste in the early, dark hours of World War II, the fact that several justices regretted the decision, Quirin was a footnote for 60 years. If anything, Quirin was a cautionary tale about the extremes courts go to in wartime, like the Korematsu case, which allowed the internment of Japanese-Americans. It wasn't used as a precedent.

But after September 11th, the Bush administration started citing the case, saying that, again, we're a nation at war and that enemies captured on US soil should be tried in military courts. Greenberger says he understands the impulse to hold military trials, but says the danger of reviving the Quirin case like this is that we'll end up with show trials just like the saboteurs got.

Michael Greenberger

When you use a process that does not really help you get to the truth, you can easily commit injustices. Had these people been tried in a civilian court, the lack of threat these people posed to the United States would have been clearer. And to the extent ex parte Quirin is being used today to say that people are guilty without giving them some kind of process, we are falling into the same pattern.

Chris Neary

This April, the Supreme Court will take up the case of Jose Padilla, a US citizen seized and held without charges for two years, and will decide, by summer, weather Quirin justifies that kind of treatment today. The verdict in the sabotage trial will be back in court again.

Ira Glass

Chris Neary. Coming up, we sit the pollsters down and we ask the questions. That's in a minute, from Chicago Public Radio and Public Radio International, when our program continues.

Act Two. Mush Polling.

Ira Glass

It's This American Life. I'm Ira Glass. Today on our program, The Facts Don't Matter. We have arrived at Act Two of our program. Act Two, Mush Polling.

Whenever poll results have shown up in the news these last few months, I've thought about this story that one of our producers tells. She was a reporter at The Baltimore Sun. And the newspaper commissioned polls on elections that were coming up. And it was our producer Sarah Koenig's job to call up the people who'd already been polled by this fancy polling organization, and ask them to shed some light on why they had chosen the particular candidates they had chosen, to put some quotes into a story about the poll.

And Sarah says that the problem was so many of the people who she called didn't really know much about the candidates who they had chosen. They didn't know what they stood for, or they had it wrong what they stood for. They'd say things like, oh, wait, is he that tall one? The poll presented their opinions as hard fact, but really their opinions were kind of a vague cloud of feelings, wispy and malleable still.

And poll numbers, especially during elections, are a huge, big deal. They dictate which candidate is going to get covered on the news, which dictates who's going to be able to raise campaign dollars. They have real-world consequences. So how wispy are they? How worrisome is this? Sarah went to find out.

Sarah Koenig

I called Zogby International, one of the country's main polling operations. It's run by John Zogby, who agreed to let me watch his callers conduct a tracking poll he was doing for Reuters and MSNBC of Wisconsin's presidential primary.

Zogby's call center in Utica, New York is on the third floor of an old General Electric factory. The rest of the million-square-foot building is basically empty, so the feeling is of this one, buzzing cell inside a huge industrial carcass. The room is row after row of about 100 cubicles, but each contain a computer and that's it, no photos of kids or beanie babies on top of the machines. Supervisors walk up and down the aisles, making sure people are pronouncing words properly and sticking to the script.

Aileen

As a Protestant, dear, do you consider yourself to be a born-again Christian, an Evangelical, or a Fundamentalist? Born again? That's wonderful. I'll see you in heaven one day. The Lord says we'll know one another.

[LAUGHS]

Oh, thank you.

Sarah Koenig

Of course, some people have a much harder time sticking to the script than others.

Aileen

Which of the following best describes your status in life, dear. Are you married? Single? Oh, I know you were married. Are you a widow, dear? I am very sorry. I'm a widow also. Trust me when I tell you my heart goes out to you. Yes, I do appreciate where widows are coming from. Do you, or does anyone in your household, keep a gun for, like, personal--

Sarah Koenig

The Wisconsin poll was short, a handful of questions about the general and primary elections and how the person felt about the candidates: very favorable, somewhat favorable, et cetera. Then there were a bunch of demographic questions. The whole thing took about seven minutes.

The Zogby staff I talked to were surprisingly idealistic about how important polling was for democracy. Aileen, the born-again widow you just heard, calls each respondent a good, American citizen at the end of the survey, and has been known to salute her computer. Another caller told me answering a poll is more effective than voting because politicians actually listen to polls.

Boden

Hello. Good afternoon. My name is Boden and I'm calling from Zogby International. Today, we're doing a poll of Wisconsin voters for Reuters MSNBC News.

Sarah Koenig

I watched Boden [? Kwazoski ?] a farmer, and DJ, and MIT-trained physicist, make his calls for about an hour. I wanted to see how often people are undecided, vague, or simply uninformed, and end up in the results anyway. The first thing I discovered is it's really hard to get someone to answer a poll. For Zogby's Wisconsin sample of 600 completed surveys, they had to call almost 10,000 telephone numbers. In an hour, Boden reaches three people who are willing to stay on the phone to take the poll, which is average.

Boden

And how likely are you to vote in the national elections: very likely, somewhat likely, or not likely? Very likely.

Sarah Koenig

The very first voter I watch him get is a woman: age 41, union member, separated, college graduate, white, conservative, makes between $35,000 and $50,000 a year. And she turns out to be exactly what I'm looking for.

Boden

And the Democratic candidates, the Democratic candidates for president in 2004 are Howard Dean, John Edwards, John Kerry, Dennis Kucinich, and Al Sharpton. If the primary were held today, for whom would you vote out of these Democrats? OK. You sure you're not sure? Or might you be leaning towards one? You're not sure at this point. OK.

Sarah Koenig

He enters undecided into his computer, and a screen comes up with this question, which is basically the same question asked in a different way.

Boden

And, if you had to choose today, if you had to choose, which candidate might you just be leaning towards: Dean, Edwards, Kerry, Kucinich, or Sharpton? Just the slightest lean towards one of them, if you had to choose today? Dean, Edwards, Kerry, Kucinich, or Sharpton? Dean? OK. Thank you.

Sarah Koenig

And there you have it. She's officially a leaner. She'll now be counted as a Dean voter. In this particular poll, 7% of all the respondents were just like her, leaners who had to be prodded.

There is an I don't know button Boden can push for almost every question on the poll, but he's not allowed to offer it to the respondent. He can only use it if they say they don't know. Everyone at Zogby seemed to truly care about getting an accurate poll, and none of them worried about whether they were pushing undecideds to choose. In fact, the only person in the building who had any problem with how the poll dealt with uncertainty was me.

So I called someone outside the building. I described what I'd seen at Zogby to Daniel Yankelovich, a famous, old-school pollster who started The New York Times Yankelovich Poll in the 1970s. Now he's chairman of two organizations, Viewpoint Learning and Public Agenda.

Daniel Yankelovich

Yeah. You were observing something that's very familiar, which is, on issues where people haven't made up their mind and where they haven't given the matter a lot of thought, that their points of view are inconclusive, vague, mushy, volatile, they could change their mind in a minute or overnight. And when you see these nice, crisp numbers on polls, they can be very misleading because they seem to suggest a definiteness and precision that is not really the case.

Sarah Koenig

Yankelovich has spent a lot of his career studying exactly what I was worried about. He first noticed the problem in the 1970s, and came up with a method of asking four questions on a poll that pinpointed exactly how strongly a person held his or her opinion. They were simple, like, on a scale of one to six, where one means that the issue affects you personally very little, and six means that you really feel deeply involved in this issue, where would you place yourself? Then he rated the totals on a scale of firm to mushy. In published reports, the mushy answers would be indicated by an asterisk. His system was dubbed The Mushiness Index by Time Magazine, one of his clients at the time.

Daniel Yankelovich

And they were quite enthusiastic. And then they found, when the reporters and writers sat down to write the stories, they found it slowed them up. It slowed up the storytelling and, as a result, they just didn't use it. And it's one of the many clashes between journalistic values and polling values.

Sarah Koenig

Not only is there a simple fix to mushy polls that's almost universally ignored, Yankelovich says some topics just generate more mushiness by their nature. The newer and more complicated the issue, the mushier the polls, and the higher the likelihood that the results will cause problems. It's happened many times in recent history.

Daniel Yankelovich

I mean, for example, when the Clinton Health Care Plan first surfaced in the early '90s, polls uniformly showed a more than 70% acceptance. And when we dug behind the numbers, people were so vague and the answers were so mushy, people were just sort of uttering a truism, yeah, that would be very nice. But if they had to go to any expense, or sacrifice on equality, or give up anything else, they weren't willing to do it.

And we came to the conclusion that it was not a 70% level of support. The real level of support was somewhere between 30% and 40%. Well, that's the difference between success and failure. That was the first real setback for the Clintons early in his term.

Sarah Koenig

On some big issues like this, he says it takes years, decades, for people to work out their opinions.

Daniel Yankelovich

Take, for example, the gay marriage issue. It's new, it's just come up. There are fierce advocates on both extremes. But the mass of the public is going to have the most mushy attitudes toward it. So the fact that it's so new, it's controversial, it's full of moral ambiguity, you'd be crazy to trust poll results on a question of that sort.

Sarah Koenig

But we do. I mean, like every day you hear people say, well, the majority of Americans agree with the Administration. There shouldn't be-- 60% of-- you know, whatever the number is. You hear it all the time.

Daniel Yankelovich

Well, I mean, they're misleading.

Reporter

And as we do at the top and bottom of every hour, now here are your latest headlines. Senator John Kerry says he is fighting for every vote in Wisconsin despite a commanding lead over his Democratic rivals.

Sarah Koenig

Zogby's poll aired on MSNBC the morning before Election Day.

Reporter

According to our MSNBC Reuters Zogby poll, Senator John Kerry is leading Howard Dean 47 to 23. Senator John Edwards is in a close third with 20%.

Sarah Koenig

Commanding lead is the same language John Zogby used in a press release to describe John Kerry's chances. His quote was used by The Associated Press in a story that ran in many newspapers, including The Boston Globe and The LA Times, the day before the Wisconsin primary. The problem was, Kerry ended up with a skimpy lead instead. He won, but only beat John Edwards by four percentage points, not 27. And Dean, instead of coming in second, as Zogby's poll showed, was a distant third.

Zogby wasn't the only pollster who got it wrong. The day after the election, the power of incorrect polling was laid out like a textbook example. Edwards was on the front page of The New York Times, not because he'd beaten Kerry, but because he'd beaten the polls predictions. Some people complained all this gave Edwards an artificial boost, which helped him raise $310,000 on the internet the day after the election. And, they said, the faulty numbers make Kerry look like more of a loser than he really was. Newspaper stories talked of Kerry scratching out a victory and Edwards as a serious challenger in a sudden two-man race.

I called Zogby to find out what happened. He was in LA and spoke to me from his cell phone. If he sounds a little defensive, it's because he was. Zogby is a controversial figure in polling circles. Some of his colleagues claim his methods aren't rigorous enough, and that he hypes his results in order to market his company. On the other hand, his polls are accurate enough, often enough, that he has some major clients.

Sarah Koenig

Is this an example where the vagueness of those people's answers played out in a way that you couldn't anticipate what's going to happen?

John Zogby

All right. That's an interesting question. But look, all we're doing is taking a snapshot of a moment in time. Polls should not be seen as being predictors, even though we try to do that. Polls need to be seen as taking a temperature at a given point in time. And there is not a doubt in my mind that my poll was relatively accurate Friday, Saturday, and Sunday.

Sarah Koenig

Zogby told me he had to stop Sunday afternoon because his client needed the numbers for Monday morning's Today Show. The problem was, after Zogby's callers stopped their work, Edwards was endorsed by Wisconsin's biggest newspaper and then did very well in a televised debate, and people changed their minds. Some pollsters I talked to said stuff like that happens all the time, and Zogby should have known better than to stop Sunday afternoon, Today Show or no Today Show.

I conducted a miniature poll of my own, just to see if something else could have affected the Wisconsin results. I got the phone numbers for Zogby's respondents and spoke to 15 of them. Most people said they voted for the person they told Zogby they would vote for, and some had well-thought-out reasons why. Two people said they never made it to the polls at all. And then there was Douglas Wills.

Douglas Wills

Hello.

Sarah Koenig

Wills was listed as a Dean voter in the poll results.

Douglas Wills

Well, they said, if I had to choose one of the Democratic candidates, who would I vote for?

Sarah Koenig

OK. And what was your answer to that?

Douglas Wills

Dean, I believe.

Sarah Koenig

Dean. OK. Did you, in fact, end up voting for Dean?

Douglas Wills

No, I voted for Bush.

Sarah Koenig

So in the poll, though, when they gave you the choice, you decided to pick one.

Douglas Wills

Yes.

Sarah Koenig

OK. How did you come up with Dean?

Douglas Wills

Oh, I really don't know. I just picked one. I said, to whoever called me, I said, well, I didn't think that I would vote for a Democrat. And they said, well, if you did vote for a Democrat, which one would you vote for? And they kind of forced me into making a choice.

Sarah Koenig

Harley Schmieden was also listed as a Dean voter and said he liked what Dean had done about health care in Vermont, and did, in fact, vote for him. Here's why he chose Dean over John Kerry, because of a mistake I'm sure a lot of people make.

Harley Schmieden

I'm a World War II veteran. Anyway, and Kerry was boasting about his Vietnam record, but what he didn't tell you was when he mowed down the women and children over there one time.

Sarah Koenig

He did?

Harley Schmieden

I don't know if you're even familiar with that story. Oh, yeah. He shouldn't boast about his war record.

Sarah Koenig

I thought the Kerry who got in trouble in Vietnam was Bob Kerrey.

Harley Schmieden

Far as I know it was John Kerry.

Sarah Koenig

No, I'm pretty sure it's Bob Kerrey, who is also a Democrat.

Harley Schmieden

Is that his brother?

Sarah Koenig

No, there's no relation. In fact, Kerry is spelled slightly differently.

Harley Schmieden

Then I'm mistaken, but that's what I thought. I thought it was John.

Sarah Koenig

Then there was Melanie Faith, who was watching TV when I called. She was counted as voting for Dennis Kucinich.

Melanie Faith

Who is it? I don't even know who he is.

Sarah Koenig

Oh, you don't?

Melanie Faith

No, I don't. Is he running for state?

Sarah Koenig

No. He is running for President.

Melanie Faith

Oh, no, no, no. I was not interested in him. No.

Sarah Koenig

You weren't?

Melanie Faith

No, I wasn't.

Sarah Koenig

Did you end up voting in the primary?

Melanie Faith

Yes, I did.

Sarah Koenig

And for who did you vote?

Melanie Faith

I'd rather keep that to myself.

Sarah Koenig

OK. But it was not for Kucinich?

Melanie Faith

No. No, it wasn't.

Sarah Koenig

Several other people I talked to reminded me of the Baltimore Sun poll respondents. Like this one woman who had an opinion, she voted for Kerry, but she really just couldn't say why. The thing she liked about Kerry was Kerry. Only about half the electorate turns out for presidential elections and, of those, one prominent pollster told me, only about 20% are paying close attention to the race. In primaries, the percentages are even smaller.

That means that, most of the time, what political pollsters end up measuring are those mushy feelings that lead to big, general conclusions about a candidate. The classic lesson on this was the presidential election in 1984. At the end of the campaign, a Gallup poll asked people a series of policy questions. Who do you agree with, Walter Mondale or Ronald Reagan? And most people said Mondale. Then they asked them who they planned to vote for, and most people said Reagan.

Ira Glass

Sarah Koenig.

Credits.

Ira Glass

You know, you can download audio of our program at audible.com/thisamericanlife. They have public radio programs, bestselling books, even The New York Times, all at audible.com.

This American Life is distributed by Public Radio International.

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Howard Stern

The government is closing in on me.

Ira Glass

I'm Ira Glass, back next week with more stories of This American Life.

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