ASAP AMERICAN LEGAL HISTORY

American Legal History II Civil Liberties in Wartime - World War II

What is the role of law in society? How does law impact society? How does context impact law?

"Are all the laws but one to go unexecuted and the government itself go to pieces lest that one be

violated."

Do the ends justify the means?

What is the balance between liberty and security?

What should be the status of civil liberties in wartime?

World War II - American Involvement

● Lend Lease/Cash Carry ● Selective Service and

Conscription Act (1940) ● Smith Act (1940) ● Japanese Aggression → Oil

Embargo ● Pearl Harbor (12/7/1941) ● First War Powers Act (1941) ● Expansion of the federal

government

Anti-Japanese Sentiment

● Yellow Peril ● Asiatic Exclusion League ● Anti-Jap Laundry League

(1908) ● California Alien Land Law

(1913/1920) ● Takao Ozawa v. U.S. (1922) ● “Jap” vs. “Nazi”

“Race Warfare” in the Pacific ● Imperial Japan and believed

superiority ● Rape of Nanking

○ 350,000

● Rapid Japanese Advance ● Japanese barbarity ● Murder and enslavement of

POWs ● Bataan Death March

○ 15,000 Dead

● Kamikaze, Refusal to Surrender, “Insane Martial Spirit”

● Battlefield Atrocities

“Race Warfare” in the Pacific

Framing Relocation and Internment ● ONI → Japanese

Espionage/Smuggling Ring (1935)

● 1939 → Tachibana & Kono ● MAGIC Intercepts:

○ Excerpt ● Niihau Incident ● West Coast Political Pressure ● Presidential Proclamation -

2525 ● Executive Order 9066 - Military

Zones (Excerpts) ● Executive Order 9102 - War

Relocation Authorities ● Japanese Internment Bill ● Curfew, Exclusion, & Internment

Itaru Tachibana - 1939

Hirabayashi v. U.S. (1943) - Issues and Decision

● Executive Orders (Federal) ● University of Washington student ● Challenged curfew and relocation ● Constitutional Question → Did the President's executive orders

and the power delegated to the military authorities discriminate against Americans and resident aliens of Japanese descent in violation of the Fifth Amendment?

● Court only considered curfew: ○ Favorable precedent before internment challenge

● Unanimous Decision

Excerpt from the Munson Report (October, 1941)

"There is some Japanese problems on the West Coast, but it has not yet reached a state in which we should fear them as a country" concluding that there was "a remarkable, even extraordinary degree of loyalty among some of this generally suspect ethnic group, but there were some Issei that remained loyal to their home country, Japan, and its Emperor."

Opposing Internment → The Munson and Ringle Reports

Japanese Relocation and Internment

● Use of 1940 census data (Blocks; names, addresses in D.C.)

● Second War Powers Act (1942) ● 110,000 - 120,000

○ 70% American born ○ Most longtime residents

● Property Loss ● "relocation centers", "internment camps", and

"concentration camps"

Japanese Relocation and Internment - Propaganda

Japanese Internment and Relocation

Japanese Internment and Relocation - Economic Consequences

Japanese Internment and Relocation - Characteristics

● Physical Removal ● Forced sale of homes and businesses ● Harsh living conditions ● Cultural impropriety ● Americanization and forced assimilation ● Impact of otherization ● Eventual:

○ Work Release ○ Military Service ○ Closures (Early 1945)

Legal Challenges - Korematsu v. U.S. (1944)

● Fred Korematsu ● Disobeyed exclusion order ● Arrested, indicted, and convicted ● Contention → Exclusion order/Executive Order 9066

violated the 5th Amendment. ● 6 - 3 Decision

German Internment ● Executive Order 9066 ● Presidential Proclamations (Alien Enemies Act)

○ 2526 ○ 2527

● German Ancestry: ○ Born → 1.2 Million ○ Both Parents → 5 Million ○ One Parent → 6 Million

● 1260 Immediately detained; 254 evicted from coastal regions ● Individual vs. En Masse ● 11,500 Interned ● Internment of people of German ancestry deported from Latin

America

Italian Internment

● Executive Order 9066 ● Presidential Proclamations (Alien Enemies Act)

○ 2527 ● Millions of naturalized citizens ● 695,000 immigrants ● 1800 detained; businessmen, diplomats, maritime workers, students →

coastal exclusion ● Loyal (initiated naturalization) vs. disloyal? ● Individual vs. en masse → Coastal Differences ● Problem with “Enemy Alien” and Italians

Military Justice - Introduction

● Laws of War: ○ Treaties, Conventions, etc. ○ Geneva, Hague, Red Cross, etc.

● Courts Martial ○ Uniform Code of Military Justice

● Military Tribunals/Military Commission ○ Rules of Procedure→ 1948 ○ Military Commissions Act → 2009 ○ Military Judge w/ 5 or 12 Members

Law and War

● Laws of War: ○ Between and among nations ○ “Body of laws”

● Articles of War → Uniform Code of Military Justice (1950) ○ Congressional Enactment

■ Desertion, conduct, espionage, etc.

Habeas Corpus → Background ● Magna Carta → 1215 ● “That you have the body . . .” ● Right of the accused → Challenge detention ● Imprisonment and cause ● Constitution and individual rights ● 1940s - 1960s:

○ Habeas petitions for state prisoners. ● Who has the power to suspend Habeas Corpus?

The Civil War → An Unprecedented Crisis ● Secession ● Threats to the capital → Maryland ● Early Progress of the War ● Spies, supporters of rebel cause ● Lincoln and the expansion of Executive Power

○ State of Congress ○ Emancipation Proclamation

● Fate of the Union, freedom of millions

Ex Parte Vallandigham (1864)

● Ohio → Former Congressman ● Peace Movement → Copperheads → Re-

Election ● General Order #38 → Speech ● Arrested and tried in Military Tribunal ● Conviction and Commutation (Exile) ● Appeal:

○ Did military tribunal have jurisdiction? Are military proceedings Constitutional?

● Decision → Supreme Court has no jurisdiction over military appeals.

Ex Parte Milligan (1866)

● Habeas Corpus Suspension Act (1863) → Proclamation 94 ● Indiana Conspiracy/Plots ● Military District of Indiana ● Charges:

○ Conspiracy against the U.S. government ○ Offering aid and comfort to the Confederates ○ Inciting insurrections ○ Disloyal practices ○ Violation of the laws of war

● Habeas Corpus Claim ● Question → Can civilians be tried by military tribunals? ● Answer → No . . .

World War II - Espionage and Sabotage

● Black Tom Island sabotage (WWI) - 7/30/1916 ○ Jersey City Pier ○ German Agents ○ Statue of Liberty Torch

● German declaration of war - 12/11/1941 ● Hitler and German Military Intelligence ● Operation Pastorius - June 1942

○ 8 Germans; 2 were American citizens ○ Training ○ U-Boats → LI and Florida

Ex Parte Quirin

● Saboteurs wore German Navy Uniforms ● Initial Coast Guard Stop ● Two saboteurs turn on the rest; FBI claims credit. ● Legacy of Ex Parte Milligan

○ Should the saboteurs be tried in a civilian court or military tribunal?

○ Was a tribal of the saboteurs by military tribunal Constitutional?

● Decision - 7/31/1942 → Per Curiam Opinion 10/29/1942

"Are all the laws but one to go unexecuted and the government itself go to pieces lest that one be

violated."

Do the ends justify the means?

What is the balance between liberty and security?

What should be the status of civil liberties in wartime?