CHAPTER TWENTY-SEVEN
There was no leaving Plum Island over the weekend for nearly everyone involved in the trial—and no coming ashore by curious reporters—but the absent media gave the defense a boost, comparing Ben to one of the era’s most famous victims of persecution.
“LIKEN HIM TO DREYFUS” read the headline in Sunday’s Washington Post, referring to Alfred Dreyfus, the French Army captain who was convicted of treason in 1894 in a hurried court-martial. Dreyfus was heckled with cries of “Jew” and “Judas” in a public degrading that included the breaking of his sword and mutilation of his uniform, then imprisoned on Devil’s Island, retried after a national outcry over faked evidence and anti-Semitism, and exonerated in the early 1900s.1
Dreyfus’s lawyer called the conviction the greatest crime of the century. French novelist Émile Zola famously wrote an article entitled “J’Accuse” portraying the French military and government as heinous. He accused them of violating usual procedures, ignoring evidence of the true seller of military secrets to Germany, and intentionally sacrificing truth and justice in order to obtain a conviction, knowing that hatred of Jews lay just below the surface in modern France and that a large portion of the public would welcome the chance openly to hate a Jew, especially for something as egregious as treason.
Dreyfus was a hard-working and soft-spoken family man, an assimilated Jew from Alsace who never stopped declaring his love of France—not when people spat at him when he was degraded in front of the Eiffel Tower, and not after years of imprisonment, enforced silence, and separation from his wife and children. He went on to serve again in the Army, rise in rank, and receive the Légion d’honneur.
Historians say the Dreyfus Affair marked the birth of the liberal intellectual in western society—the first time writers, artists, and academics played a major, successful role as political advocates. The first Jewish prime minister of France, Léon Blum, credited the affair with enhancing acceptance of Jews such that he could hold such a high office.2 “A country that tears itself apart to defend the honor of a small Jewish captain is somewhere worth going,” Blum’s father is said to have quipped.3
Writers still find relevance in the case, such as Louis Begley and New Yorker contributor Adam Gopnik, who in a review of Begley’s book about Dreyfus wrote that the “Dreyfus affair matters . . . because it was one of the first tests of modern pluralist liberalism and its institutions—a test that those institutions somehow managed to pass and fail at the same time.”4
They failed by accusing and convicting Dreyfus; they passed by admitting error and allowing Dreyfus to rejoin the military. Samuel Hudson had to hope that the same would come to pass for his client, for there were definite similarities between the two men and their cases.
Like Ben Koehler, Dreyfus was a military academy graduate and artilleryman. Both men were short and wanting in charisma. Neither was a charmer, in contrast to the key witnesses against Ben, the gregarious Worcester and likable Frick. Gopnik describes Dreyfus as having a “cold and correct demeanor,” and the same could be said of Ben, at least some of the time, such as when he wore his uniform to a costume party, told men to button their collars on hot days, and closed the officers’ club. Ben’s English-molded propriety put some people off.
And just like Dreyfus, Ben had supporters who claimed the military justice system was failing him. “Koehler’s friends . . . liken his case to that of Dreyfus and hold he is being made the victim of a plot,” wrote the Washington Post.
But while Dreyfus’s many advocates—the so-called Dreyfusards—pointed to anti-Semitism as the factor fueling the persecution of Dreyfus, Ben’s supporters did not have a name for what was happening to him.
One “man who knows Maj. Koehler” hinted at what might be called homophobia today when quoted as “tell[ing] this as an example of the charges”: “Maj. Koehler, who made personal inspections among the company quarters, frequently would discover that a young recruit was melancholy. He would take a fatherly interest in the youth, encouraging him by cheering words and by advice. His interest in those new soldiers is misinterpreted purposely by his accusers.”5
Surely there were married officers who took “a fatherly interest” in new soldiers in 1912 and 1913, but no one was accusing them of homoerotic behavior. The idea that “fatherly interest” by an unmarried man in other men could be “misinterpreted” as homosexuality aligns with Michael Kimmel’s “central thesis about American manhood at the turn of the century; that masculinity was increasingly an act, a form of public display; that men felt themselves on display at virtually all times; and that the intensity of the need for such display was increasing. To be considered a real man, one had better make sure to always be walking around and acting ‘real masculine.’”6
Though he had fought in the Philippine War, Ben did not spend his time at Fort Terry “walking around and acting ‘real masculine.’” There would even be debate by the lawyers about Ben’s hobby of growing flowers and what that said about him, as though no married man in the early 1900s ever liked to look upon a rose—including the officers who planted Ben’s flowers in front of their houses.
Were people ready to “tear the country apart” over the alleged mistreatment of a possibly homosexual man who wasn’t even claiming that identity for himself? They were not, and the consequent lack of an ideological rallying cry left people speculating about the possible reasons for a “plot” against Ben.
One explanation offered by the Washington Post was that “Koehler offended his brother officers, closing the Officers’ Club at Fort Terry, by requiring hard work of them and in other ways.” Yet the paper also reported that at Fort Terry, Ben had “won the esteem of those with whom he has come in contact.”
“Personal hatred,” was the explanation provided in the Washington Times.
It is impossible to know where the press was getting its information. Both Washington papers sent reporters to New London, in view of extreme interest in the case in the nation’s capital arising from the charges of a plot within the Army, the nature of the charges, and the involvement of congressmen, senators, and cabinet members. For its part, The New York Times appears to have been in daily contact with Wood and/or Garrison.
Yet whether or not they knew the details of the allegations, reporters were not printing them (at least not yet), merely referring to them as “scandalous,” “immoral,” and “reek[ing] with immorality and degeneracy.”7 According to the Washington Post, the utmost secrecy was being enforced: “Passes on the government boats are refused. Attempts to land from private boats are frustrated. Soldiers are denied the privilege to leave the island, and civilians are kept there veritable prisoners for fear they may talk. Two local photographers who were known to have photographs of interest at this time, it is alleged, are detained at the fort.”
Even a prominent attorney was denied access to Plum Island. Daniel Anthony Jr. and Bat Koehler urged the national chair of the Democratic Party, William McCombs, to look into Ben’s case, and McCombs sent his law partner, Frederick Ryan, from Boston to speak to Ben. While the Army let Ryan cross the Sound from New London, he was blocked from disembarking. Instead, Ben and Hawthorne conferred with Ryan in the captain’s cabin. The lawyer then turned around and headed home.8 It does not appear that he played any further role in the case.
For a time, however, it looked like the veil of secrecy might be lifted on orders from Washington. This development caught everyone by surprise late Thursday.
In the Dreyfus case, government secrecy infuriated both sides. For failing to make the accusation of treason public when first lodged, anti-Semites accused the French military of “protecting a traitor Jew,” while the Dreyfusards accused the government of using secrecy to hide its unfair legal tactics.9
In Ben’s case, the press wanted access, and Garrison and Wood wanted them to have it.
After Garrison received the Wednesday telegram from Barry stating that the court-martial would be closed, he replied the next day that while he “sympathized” with the desire “that the unpleasant details” of the case not be made public, that did not outweigh the “undesirable attitude of holding the sessions . . . in private.” He went on to explain: “I am a firm believer that the administration of justice should be open and in sight of the people, and I have never favored trials not so open to the public. Much less harm is done to what is essential by having justice administered in plain sight . . .”
Garrison ordered “that the trial of Major Koehler be open to the public,” and as for the “unpleasant details,” he was prepared to trust the media: “Newspapers must be guided by their own sense of decency as to what is proper to publish, and it is not our business to act as their guardians in this regard.”10
Garrison’s words sounded stirring, anticipating arguments that First Amendment advocates would make later in the century in support of media access to official proceedings. His message was also complimentary of reporters’ judgment—but it was written before trials became true-life dramas for public consumption, before the “media circus” of the Lindbergh baby trial, the O. J. Simpson case, and other legal spectacles. It is possible, however, that underlying Garrison’s order was a desire for, or indifference toward, Ben’s public shaming. If Wood wanted revenge and the investigations had convinced Garrison of Koehler’s guilt, did Wood and Garrison agree that Ben deserved as much public censure as could be delivered?
Barry had no choice but to relay Garrison’s order to Fort Terry, where a soldier handed it to Kirby after Frick finished testifying.11 Kirby read the telegram and fumed. As adamant as Garrison was in favor of opening the trial, Kirby was equally opposed. He discussed the order with Mayes and Hudson, and he telegraphed Barry that he wished Garrison would change his mind.12 Kirby may have agreed that publicity would hurt the Army, but his main concern was “decency,” or so he said. He did not believe the public should read about testicle-grabbing in the papers.13 Mayes agreed, quoted as saying that “any degree of secrecy was preferable to the exposure of disgraceful conditions affecting a whole garrison.”14
Kirby also knew that the person with the biggest stake in the trial was Ben, and the telegram that went back to Governors Island Thursday night said, “the accused now requests that in his interest the action of the Secretary [of] War be reconsidered.” Kirby cited legal authority to support his request, which Barry’s chief of staff relayed to Washington that night.15
Until the matter was decided, Ben’s court-martial stood in recess. There would be no testimony on Friday. Garrison was getting some attitude from little Plum Island.
The pushback worked. Garrison replied that he did not mean to “control” the court’s discretion in “passing on any motion of the accused requesting exclusion of spectators.” He gave the jury the right to make the decision—“bearing in mind that unless the administration of justice will be furthered by the exclusion of spectators, courts-martial should be open to the public.”16
Kirby did not need the lecture. He knew what he wanted. On Saturday morning, the parties gathered in the headquarters building. Hudson rose and on behalf of Ben made a formal request that the public and press be excluded. Mayes agreed, and a majority of the three colonels, five lieutenant colonels, and three majors on the jury voted to keep the trial secret.17
According to The New York Times, “it was generally believed that Major Koehler wanted the trial open to the public, and the news from Washington this morning that he was opposed to an open session caused surprise.”18 The Washington Post reported that Kirby had pressured Ben to make the motion and that “Koehler’s friends say they see in the secrecy surrounding the court-martial an attempt by high ranking officers to center all accusations on the major.”19 Other papers reported that Ben’s Nebraska brothers were “fighting” to keep the trial closed.20
The Dreyfus case echoed. As much as Ben stood to lose in reputation from national publicity describing the details of the accusers’ testimony, in Dreyfus’s case secrecy had favored the government, hiding the paucity of the prosecution’s evidence from public scrutiny. An open trial, making visible the government’s prosecution of a perceived homosexual of high status who denied the charges, might have brought people concerned with social justice and individual rights to Ben’s cause, possibly accelerating the creation of a political movement in opposition to such discrimination. Overall, it was hard to say whether an open or closed court would have served Ben best.
Another similarity between Dreyfus and Ben Koehler concerned the central role played by their brothers. Dreyfus’s most tireless supporter was his brother, Mathieu. Likewise, Ben had relied on Louis in deciding to fight the charges. There was a key difference, however, between Louis Koehler and Mathieu Dreyfus: Mathieu was a private citizen, not an employee of the same military that had charged his brother with crimes.
Louis had already been expelled from Puerto Rico, and it was alleged that Wood had “retired from the service” members of the jury who acquitted Louis in 1906, setting up Wood to be court-martialed but for Roosevelt’s intervention.21 So it mattered that Wood would soon become the direct superior of Kirby and the other jurors by returning to his old job as commander of the Eastern Department.22
When Roosevelt first gave Wood that top position back in 1907, only weeks after nullifying the Louis Koehler proceedings, there were “many officers who did not think that the War Department’s intentions would get out so soon after the Koehler affair,” according to The New York Times.23 Indeed, sources had told the Times that Roosevelt made the appointment precisely to show support for “his friend Gen. Wood” after the Louis Koehler verdict cast Wood as a tyrant.
How ironic, then, that Wood should return to a position he may have obtained as a result of one Koehler brother to influence the fate of another. As head of the Eastern Department, he would have even more power over the jurors hearing Ben’s case than Worcester had over his company soldiers. He would have the power to change their assignments—to send them all the way to the Philippines—and end their military careers, to deprive them of pretty much anything a military man could want.
Wood was also said to have made it clear to his soon-to-be subordinates what he wanted from them: a conviction of Ben Koehler.24
Kirby and nearly all the other jurors had stood up to Garrison regarding a closed courtroom. Would they do so to Wood? And, after fourteen more accusers presented their sordid stories, would the jurors be so inclined? Would they believe in Ben Koehler’s innocence with the passion of a Dreyfusard?