Making Our Democracy Work (28 page)

In 1950 the Court reviewed another presidential action taken in time of war. During the Korean conflict, President Truman had seized steel mills belonging to private companies. He thought the seizure necessary to avert a strike that could seriously interfere with the war effort. The Court held that without congressional authorization President Truman lacked the legal authority to seize privately owned steel mills. Hence, the seizure was unconstitutional. Justice Jackson, concurring, emphasized the fact that Congress had not authorized the seizure. He wrote that actions taken by the president fall into three categories: (1) those taken pursuant to congressional legislation; (2) those taken without congressional legislation; and (3) those taken in conflict with congressional legislation. He added that as one travels from the first category to the third, the scope of the president’s authority to act, even in wartime, diminishes. Truman accepted the Court’s decision and returned the mills to their owners.
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When the Court faces a wartime president who has curtailed ordinary civil liberties, and when it faces a claim he has gone too far, it will also face a president whose constitutional authority is likely at maximum strength. The president will have acted pursuant to his war, foreign affairs, and national security powers. Congress will likely have enacted broad statutes delegating to the president the authority to act as he did. At the same time, the president will have determined that the factual circumstances warrant curtailment of an individual’s liberty. This last consideration is important both because the president is more
expert than is the Court in wartime matters and because the precise protection that the Constitution offers individuals often varies with the circumstances. The Fourth Amendment’s insistence on search warrants, for example, does not apply where police see a robber with a hostage run into an apartment house.

Given the strength of the considerations that favor deference to the president—considerations of expertise, of constitutional role, of congressional delegation, of factual circumstance—can the Court say no to the president? If not, will the relationship between Court and president almost inevitably become a one-way street? Put simply, how can the Court protect civil liberties in time of war?

At least one Court case provides grounds for pessimism. During World War II the Court upheld as constitutional a decision by President Franklin D. Roosevelt to forcibly remove seventy thousand American citizens of Japanese ancestry from their homes on the West Coast and require them to live in “relocation camps” in eastern California and the Rocky Mountain states. Scholars have had great difficulty finding any reasonable justification for the president’s decision in this case,
Korematsu v. United States
. Most describe the Court’s decision as mistaken, and they include it among the Court’s worst. Yet the Court majority included even Justices Hugo Black and William O. Douglas, who ordinarily found in the Constitution strong protection for individual liberties. It is important to understand why and how the Court reached its conclusions. The case illuminates the difficulties for the Court of maintaining that protection where a president, with his powers at full strength, acts to the contrary. It also shows the importance of holding the president constitutionally accountable in those circumstances.
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I
N
F
EBRUARY
1942, President Roosevelt signed an executive order (number 9066) that delegated to military commanders the power to relocate persons of Japanese ancestry living in the United States. Why did he do this?
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Only a few weeks earlier, Japan had bombed Pearl Harbor, and West Coast civilians and many in the military feared a Japanese invasion of the West Coast. Although public opinion in California had initially followed the advice of the
Los Angeles Times
, “Let’s not get rattled,” that opinion soon turned against California’s Japanese residents. Some Californians panicked, refusing to buy vegetables from Japanese truck farmers and firing Japanese servants for fear of being poisoned.
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Soon radio commentators, editorial writers, influential agricultural groups, and political figures began to argue, in the words of one congressman, that “all Japanese, whether citizens or not, be placed in inland concentration camps.” The
Los Angeles Times
reversed field. California’s governor asked for removal of all Japanese from California, and the entire congressional delegation supported removal as well. Although he subsequently apologized, even Earl Warren, then California’s attorney general, supported removal. Later, as chief justice, Warren strongly supported civil liberties—writing the Court’s opinion in
Brown v. Board of Education
—but in early 1942 he told a group of state sheriffs that the fact that “we have had no fifth column activities” or “sabotage” shows “a studied effort” by Japanese living in California “not to have any until the zero hour arrives.” He argued essentially that the
absence
of “sabotage” itself showed that many resident Japanese were disloyal.
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Significantly, the army general in charge of the Sixth Military District, which included the West Coast, strongly supported removal. Stationed in the Presidio of San Francisco, General John L. DeWitt told the War Department that he feared invasion; that Japanese had frequently signaled valuable targeting information to Japanese submarines offshore; and that Japanese residents had helped commit acts of sabotage and espionage. Because DeWitt believed that many Japanese residents were disloyal and that no one could distinguish between those who were loyal and those who were not, he concluded that the only safe thing to do was to remove them all. Further support came from the report of a commission headed by the Supreme Court justice Owen Roberts, which quickly investigated the Pearl Harbor attack. The commission stated that “persons having no open relation with the Japanese foreign service” had provided help to an espionage ring. To the public
those words spelled “fifth column”—or, in today’s vernacular, terrorist cells in our midst.
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Removal did have its opponents—including the FBI and its leader, J. Edgar Hoover. Hoover said the FBI could distinguish the loyal from the disloyal. They had rounded up about two thousand Japanese aliens immediately after Pearl Harbor and saw no need to remove all citizens of Japanese ancestry.
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Some army generals, such as Mark Clark, thought the logistical problems associated with relocating and housing 112,000 Japanese civilians would prove overwhelming. And Justice Department officials, concerned with the threat to civil liberties, found the removal of 70,000 American citizens horrifying. How, they asked, can we relocate American citizens of Japanese origin but not those of German or Italian origin? Furthermore, if the government permitted citizens of Japanese origin to remain at home in Hawaii, why remove citizens of Japanese origin from California?
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At first the attorney general, Francis Biddle, and the secretary of war, Henry L. Stimson, leaned against removal. But the War Department’s assistant secretary, John McCloy, argued strongly for removal. Ultimately, the War Department and the Justice Department cleared DeWitt’s removal recommendation and sent it on to the president, who approved it.
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T
HE PRESIDENT’S EXECUTIVE
order gave military commanders the authority to designate “military areas” and to impose restrictions on those present in the areas. Congress subsequently ratified the order with a statute that imposed criminal penalties on anyone who knowingly “shall enter, remain in, leave, or commit any act in any … military zone … contrary to” applicable “restrictions.” On March 2, 1942, General DeWitt designated the western portions of California, Oregon, and Washington as a special “military area.” And within the next few weeks DeWitt issued several orders that applied to all persons of Japanese ancestry.
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The first order imposed a curfew. A second required all persons of Japanese ancestry to remain within the West Coast “military area,” and
then a third simultaneously told them to leave every part of that area but certain specified “assembly centers,” including Tanforan and Santa Anita racetracks near San Francisco and Los Angeles, respectively. The orders thereby required all persons of Japanese ancestry to gather together at those racetracks and similar designated areas. The government transported them to internment camps in the eastern parts of California and in the intermountain states. By early June 1942, 100,000 and by October 112,000 “persons of Japanese ancestry,” including 70,000 American citizens, were living in those camps, behind barbed wire and under guard.
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Camp facilities have been described as “spartan in the extreme.” Those interned lived in barracks built of tar paper and pine. The internal walls were made of thin plywood. Inside, sheets and blankets divided the bunks. The residents used common bathing and toilet facilities. In some camps daily winds would blow dust and sand everywhere. The Japanese internees lived in the camps for two to three years. Within a few months of their arrival, however, any realistic threat of a California invasion had disappeared. The American armed forces began to win victories in Europe and the Pacific. Indeed, thousands of Japanese-Americans joined the U.S. Army. The Nisei 442nd Regimental Combat Team emerged as the “most decorated unit” in Europe, having received more than eighteen thousand decorations for valor.
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The government authority that ran the camps, the War Relocation Authority (WRA), itself began to recognize that it lacked any justification for continuing to confine the residents. By October 1942 the WRA had developed a screening program to identify internees whose loyalty was in doubt and whom it sent to a camp at Tule Lake, California. The WRA offered to release the rest, provided they agreed not to return to California, where anti-Japanese sentiment was strong. By 1943 the WRA had begun to abandon this requirement, and by late 1944 the government had announced it would close all the camps the following year, eventually permitting the residents to return to California.
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Before that happened, a few of the affected Japanese-Americans tried to contest the legality of the relocation orders, and four cases eventually reached the Supreme Court. Two of the cases, those of Gordon Hirabayashi and Fred Korematsu, were critically important. The
Court held against both Hirabayashi and Korematsu. Nearly forty years later, in 1988, Congress enacted a resolution of apology for what one of the camp residents, Fred Korematsu, properly described as “a great wrong.” But what about 1944? Why did the Court not reach the same conclusion then?
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G
ORDON
H
IRABAYASHI WAS
an American citizen born of Japanese parents in Auburn, Washington. A pacifist, he deliberately violated the curfew and the exclusion orders in May 1942. Immediately thereafter, he went to the FBI, bringing with him a briefcase containing papers that documented his violations, and explained that he wanted to test the orders’ lawfulness.
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The government charged Hirabayashi with two criminal misdemeanors, the first for refusing to report to an assembly center, the second for not keeping the curfew. He was convicted of both. The federal judge, after holding the curfew orders constitutional, sentenced him to consecutive sentences of thirty days of imprisonment for each violation—a total of sixty days. When Hirabayashi discovered that he would serve his thirty-day sentences in the local jail, he asked to serve instead in an outdoor work camp. The judge, making a decision that had surprisingly important later consequences, accommodated him, changing Hirabayashi’s sentence to ninety days for each violation to run
concurrently
, that is, ninety days in total.
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Hirabayashi appealed his convictions to the Ninth Circuit Court of Appeals. That court held the case on its docket for several months without reaching a decision. On February 19, 1943, the appeals court heard oral argument. Then, at the Justice Department’s request, it asked the Supreme Court to consider the constitutional questions. The Court announced on April 5 that it would decide the case.
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Both sides saw the case as a test of the government’s internment authority. The American Civil Liberties Union (ACLU) guided the preparation of Hirabayashi’s brief, which focused on detention. How could the Constitution permit detention of American citizens without
any procedural safeguards? How could it permit detention of a group whose members were mostly indisputably loyal? How could it select that group on the basis of race? Why, at the very least, did the government not begin a loyalty screening program immediately after internment began?
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The government did not find these questions easy to answer. How could the War Department argue against loyalty screening? It recognized that many citizens of Japanese ancestry were undoubtedly loyal. In early 1943 it had created that highly decorated Nisei fighting unit, the 442nd Regimental Combat Team. And as I’ve mentioned, the War Relocation Authority began a screening program that would allow loyal citizens to return to the West Coast, but with a catch. A screening question asked if the internee was willing to “serve in the armed forces of the United States on combat duty.” The WRA counted a negative answer, even from women and children, as suggesting uncertain loyalty. It then decided there were too many negatives to warrant allowing any internees to return to California. Regardless, why not screen and return?
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