After the war, when Harry Truman was President, his Attorney General, Tom Clark, decided to open the files of the secret trial. It turned out that the two saboteurs who were given lengthy sentences, George Dasch and Ernst Burger, hated the Nazi regime and had left Germany expressly determined to expose the plot. Soon after they landed on the beach in Amagansett, Long Island, Dasch and Burger phoned the FBI in New York. They went to Hoover's Washington office, revealed the plot in full and explained how and why they had led the real saboteurs into the trap.

William Turner, one of Hoover's veteran FBI agents, later wrote: "Ironically, [Dasch] is most probably an authentic American war hero, responsible for saving many lives. But fate had made him a threat to the FBI's public image." As Lloyd Cutler, former White House counsel under Bill Clinton and a junior member of the prosecution team, explained it to the Atlanta Journal-Constitution in 1980, "I think the major reason the trial was kept secret, was the fact that it wasn't the FBI that had done the real work in capturing the Nazis." Had the trial been open, the military officials who presided over the tribunal would have been hard pressed to convict Dasch and Burger. But it was not, and the damage to these two men was devastating.

According to a series of articles published in 1980 by the Journal-Constitution, two years after Dasch and Burger arrived in prison, there was a riot because the prisoners objected to being housed with Nazis and Dasch was almost thrown off the roof of the penitentiary. Dasch was then transferred to solitary confinement at Leavenworth, Kansas, forbidden to have even a pencil. In April 1948 both Dasch and Burger were granted executive clemency and deported. Dasch, forced to return to Germany, was branded both a Nazi criminal and a traitor to the fatherland in the magazine Der Stern. His hometown paper, in a front-page article, dubbed him "The Judas of Speyer." Dasch tried to return to the United States many times during his lifetime but was never permitted to. He died in Germany in 1991.

History shows that giving unfettered discretion to the executive branch to capture, prosecute and try defendants without public scrutiny is likely to yield results that will be questioned for years to come and set a precedent for further incursions on individual liberties. Whether the Administration or the officers presiding over the military tribunals will comply with First Amendment requirements affirmed by the Supreme Court remains an open question, but so far the message the President has sent is that he does not have to. Since September 11, the Bush Administration has pursued a secretive legal strategy. The Immigration and Naturalization Service continues to detain secretly hundreds of aliens rounded up after September 11 whose links to the terrorist plot, if any, have not been explained. Without public announcement, for example, on September 21, 2001, the country's chief immigration judge, Michael Creppy, who is appointed by the Attorney General and comes under the executive branch of government, issued a memorandum ordering that immigration hearings designated by the Justice Department be kept secret, with court officials forbidden even from confirming that cases exist.

Since September 11, civil rights groups and news organizations have sued the federal government for blocking press and public access to immigration proceedings and detentions. In one case, decided on April 3, in which the Detroit Free Press and Ann Arbor News filed suit seeking access to deportation proceedings of a Detroit-area Muslim leader, the court held that the government had violated the First Amendment by excluding the press and public. On March 6 another suit was brought by the New Jersey Civil Liberties Union, the Center for Constitutional Rights and other legal groups challenging the government's closed immigration hearings; and in late February a federal judge in California declined to permit civil rights groups to obtain a list of Afghan detainees being held at Guantánamo Bay, Cuba.

The State Department has repeatedly criticized secret military tribunals in other countries, and with good reason. The public policy rationale the Supreme Court has used in expanding the First Amendment right of access is that just results come from openness. Secrecy does little more than cloak potential corruption, foment distrust and prevent the community from seeing justice done. The President, even in a time of war, may not alter that equation by simply changing the forum in which defendants are tried from courts to tribunals. If asked, the Supreme Court should find that the public and press have a First Amendment right of access to military tribunals as well.

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