Authors: John Yoo
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WARTIME CIVIL LIBERTIES
IT IS COMMONPLACE today to read the argument that war reduces civil liberties too much. We can gain a useful perspective on the question by examining Roosevelt's wartime measures. FDR responded to the devastating Pearl Harbor attack with domestic policies, such as the use of military commissions, the internment of Japanese-Americans, and the widespread use of electronic surveillance. As in the Civil War, the federal courts deferred to the political branches until the war ended, and Congress went along with the President for the most part.
MILITARY COMMISSIONS
MILITARY COMMISSIONS are a form of tribunal used to try captured members of the enemy for violations of the laws of war. American generals have used them from the Revolutionary War through World War II, and as we have seen, the Lincoln administration deployed them during the Civil War to try Confederate spies, irregular guerrillas, and sympathizers. Military commissions are neither created nor regulated by the Uniform Code of Military Justice, which is enacted by Congress and governs courts-martial; instead, they were established by Presidents as Commander-in-Chief and by military commanders in the field.
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World War II witnessed the use of military commissions on a par with the Civil War, but primarily for the administration of postwar justice. While the Nuremburg trials were the most well-known, military commissions heard charges of war crimes against many former German and Japanese leaders at the end of the war. But the first commission was set up well before those to hear the case of "The Nazi Saboteurs." In June 1942, eight German agents covertly landed in Long Island and Florida with plans to attack factories, transportation facilities, and utility plants. All had lived in the United States before the war, and two were American citizens. One of them turned informer; after initially dismissing his story, the FBI arrested the plotters and revealed their capture by the end of June. Members of Congress and the media demanded the death penalty, even though no statutory provision established capital punishment for non-U.S. citizens.
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Roosevelt wanted a trial outside the civilian judicial system. On June 30, he wrote to his Attorney General, Francis Biddle (Jackson having been elevated to the Supreme Court), supporting the idea of using military courts because "[t]he death penalty is called for by usage and by the extreme gravity of the war aim and the very existence of our American government." Roosevelt already thought they were guilty, and the punishment was not in doubt: "Surely they are just as guilty as it is possible to be...and it seems to me that the death penalty is almost obligatory." Two days earlier, Biddle and Secretary of War Henry Stimson had worried that the plot was not far enough along to win a conviction with a significant sentence -- perhaps two years at most. Stimson was surprised that Biddle was "quite ready to turn them over to a military court" and learned that Justice Felix Frankfurter also believed a military court preferable.
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On June 30, Biddle wrote to Roosevelt summarizing the advantages of a military commission. Proceedings would be speedier, it would be easier to prove violations of the laws of war, and the death penalty would be available. Biddle also believed that using a military commission would prevent the defendants from seeking a writ of habeas corpus. "All the prisoners can thus be denied access to our courts." He did not commit to writing another important consideration: secrecy. According to Stimson, Biddle favored a military commission because the evidence would not become public, particularly that the Nazis had infiltrated U.S. lines with ease and had been captured only with the help of an informant. Biddle recommended that FDR issue executive orders establishing the commission, defining the crimes, appointing its members, and excluding judicial review.
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On July 2, 1942, Roosevelt issued two executive orders. The first created the commission and gave it the authority to try any "subjects, citizens, or residents of any nation at war with the United States" who attempt to "enter the United States or any territory or possession thereof, through coastal or boundary defenses," with an effort to "commit sabotage, espionage, hostile or warlike acts, or violations of the law or war." The commission would try the defendants for violations of the laws of war, which mostly took the form of unwritten custom. FDR prohibited any appeals to the civilian courts, unless the Secretary of War and the Attorney General consented.
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His second order, in one paragraph, established the rules of procedure. The military judges were to hold a "full and fair trial" and could admit any evidence that would "have probative value to a reasonable man." The concurrence of two-thirds of the judges was required for sentencing, and any appeals had to run directly to the President himself.
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As structured by FDR, the commissions subjected the Nazi saboteurs to a form of justice very different from that normally applied in civilian courts. The most striking departure was the absence of a jury, as guaranteed by the Sixth Amendment to the Constitution. Neither civilian criminal procedure nor the normal rules of evidence applied, and FDR made no allowances for a right to legal counsel, a right to remain silent, or a right of appeal. Another important difference was that the laws of war, which at that time remained mostly unwritten, would define the crimes. This was radically different from the civilian system, which requires that the government prosecute defendants for crimes that are clearly defined and written.
FDR's order was of uncertain constitutionality under the law of the day. At that time, the governing case was still
Ex parte Milligan. Milligan
held that the government had to use civilian courts when the defendant was not a member of the enemy armed forces, and the courts were "open to hear criminal accusations and redress grievances."
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FDR created military commissions to avoid
Milligan
, to charge the defendants with violations of the laws of war, and to preclude any form of judicial review. Military counsel for the Nazi saboteurs challenged the constitutionality of the trial on the ground that courts were open, the defendants were not in a war zone, violations of the laws of war were not subject to prosecution under federal law, and military commissions violated the Articles of War enacted by Congress.
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FDR was not deterred when the Supreme Court agreed to hear the defendants' case. As the Justices gathered in conference before oral argument, Justice Roberts reported that Biddle was worried that FDR would order the execution of the saboteurs regardless of the Court's decision. Chief Justice Stone, whose son was working on the defense team, said, "That would be a dreadful thing."
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While Stone did not recuse himself, Justice Murphy -- who was in uniform as a member of the army reserve -- did. Justice Byrnes, who had been serving as an informal advisor to the administration, did not. Biddle himself argued the case and urged the Court to overrule
Milligan
, but after two days of oral argument, the Justices decided to uphold the military commission. The great pressure on the Court is reflected in its decision to deliver a brief
per curiam
opinion the day after oral argument, with an opinion to follow months later.
Commission proceedings began the day after the Supreme Court issued its order. The commission convicted and sentenced the defendants to death in three days. Five days later, FDR approved the verdict but commuted the sentences of two defendants. Roosevelt's two executive orders remained the only guidance for the commission on the rules of procedures and the definition of the substantive crimes. There was no written explanation, for example, of the elements of the violations of the laws of war, nor were procedures given, aside from the votes required for conviction and the admission of evidence.
When the Supreme Court finally issued its opinion, it carefully distinguished
Milligan
. Chief Justice Stone's unanimous opinion for the Court found that
Milligan
applied to a civilian who had never associated himself with the enemy. The Nazi saboteurs, by contrast, had clearly joined the German armed forces. Neither the Bill of Rights nor the separation of powers barred FDR from using military courts during wartime to try enemy combatants. Congressional creation of the court-martial system and the absence of any criminal provisions to punish violations of the laws of war presented no serious obstacle. Stone read the Article of War recognizing the concurrent jurisdiction of military commissions as congressional blessing for them. The Justices decided not to address the issue that had divided them behind the scenes -- whether Congress could require the President to provide the saboteurs with any trial at all, civilian or military -- because they did not read any congressional enactment as prohibiting military commissions. If the United States were at war, and it captured members of the enemy armed forces, it could try the prisoners for war crimes outside the civilian or courts-martial systems.
DETENTION
iN THE WAKE OF Pearl Harbor, President Roosevelt ordered sweeping military detentions that in absolute numbers went well past Lincoln's policies in the Civil War. After the Japanese attack and the German and Italian declarations of war, FDR authorized the Departments of War and Justice to intern German, Japanese, and Italian citizens in the United States. In February 1942, for example, the government detained approximately 3,000 Japanese aliens.
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Detention of the citizens of an enemy nation had long been a normal aspect of the rules of war, and was authorized by the Alien Enemies Act (on the books since 1798). That same month, FDR went even farther and authorized the detention of American citizens suspected of disloyalty. On February 19, 1942, FDR signed Executive Order 9066, allowing the Secretary of War to designate parts of the country as military zones "from which any or all persons may be excluded."
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By the end of 1942, the government moved 110,000 Japanese-Americans to ten internment camps because they might provide aid to the enemy. Recent historical work suggests that Roosevelt took a far more active role in the detention decision than has been commonly understood.
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There was substantial disagreement within the military and the administration on the internments.
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General John DeWitt, commander of the Fourth Army on the West Coast, initially opposed the mass evacuations of Japanese-Americans, as did officials in the Justice Department and several prominent White House aides, but by late January 1942, thinking had changed. A popular movement on the West Coast demanded removal of the Japanese-Americans to the nation's interior. It gathered momentum as the United States suffered a string of military defeats in the Pacific. It appears that the precipitating factor was the release of the Roberts Commission report on the Pearl Harbor attacks. While the commission only briefly mentioned that Japanese in the Hawaiian Islands, along with Japanese consular officials, had sent intelligence on military installations before the attacks, it "attracted national attention and transformed public opinion on Japanese Americans."
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Newspapers, California political leaders, and military officials demanded that the Roosevelt administration intern Japanese-Americans out of fear of further sabotage and espionage. Some in the War Department discounted the effect of espionage on the West Coast, and FBI Director J. Edgar Hoover dismissed claims of disloyalty.
Cabinet members raised the issue twice with the President before the final executive order. Biddle met FDR for lunch in early February 1942 to express doubts about the need for internment, and while FDR did not make a decision at that time, he concluded the lunch by saying he was "fully aware of the dreadful risk of Fifth Column retaliation in case of a raid."
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A few days later, Stimson called President Roosevelt after learning that General DeWitt would recommend removal of Japanese-Americans on the West Coast. News that Singapore had fallen arrived the day before Stimson's call, making it unlikely that FDR would second-guess claims of military necessity. Nonetheless, Stimson -- who had his own doubts about the necessity and legality of the evacuations -- proposed three options: massive evacuation, evacuation from major cities, or evacuation from areas surrounding military facilities. Roosevelt responded that Stimson should do what he thought best, and that he would sign an executive order giving the War Department the authority to carry out the removals. DeWitt soon found the evacuations necessary on security grounds, and Stimson and Biddle agreed on a draft of the executive order, which was based on Roosevelt's constitutional authorities as Chief Executive and Commander-in-Chief. It appears that FDR based his decision solely on the military's claim of wartime necessity.
Several scholars have observed that Roosevelt was not vigilant in protecting civil liberties, and in this case, according to one biographer, the decision was easy for him. FDR believed that the military "had primary direct responsibility for the achievement of war victory, the achievement of war victory had top priority, and 'victory'" had for him "a single simple meaning" of defeating Germany and Japan. Victory, for Roosevelt, "was prerequisite to all else."
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There was no great outcry from liberal leaders, there was no cabinet meeting or forum for debate within the administration, and the Attorney General came to agree with the War Department that the measure was legal. Recent historical work argues that the internment decision did not arise solely because of misinformation about Japanese-Americans or the pressure of events early in the war. The internments happened in part because FDR was ready to believe the worst about the potential disloyalty of Japanese-Americans.
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