american legal history 2
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WW2PP.pptxAmerican 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
Issei → First Generation Immigrants
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?
