CRS Report for Congress: Detention of American Citizens as Enemy Combatants
March 31, 2005
(What I have done is to modify the original article slightly, and add comments in italics.)
During the Second World War, President Roosevelt made numerous
proclamations under the Alien Enemy Act for the purpose of interning aliens deemed
dangerous or likely to engage in espionage or sabotage. At the outset of the war,
the internments were effected under civil authority of the Attorney General, who
established “prohibited areas” in which no aliens of Japanese, Italian, or German
descent were permitted to enter or remain, as well as a host of other restraints on
affected aliens. The President, acting under statutory authority, delegated to the
Attorney General the authority to prescribe regulations for the execution of the
program. Attorney General Francis Biddle created the Alien Enemy Control Unit to
review the recommendations of hearing boards handling the cases of the more than
2,500 enemy aliens in the temporary custody of the Immigration and Naturalization
Service (INS).
In February of 1942, the President extended the program to cover certain
citizens as well as enemy aliens, and turned over the authority to prescribe
“military areas” to the Secretary of War, who further delegated the responsibilities
under the order with respect to the west coast to the Commanding General of the
Western Defense Command. The new order, Executive Order 9066, clearly
amended the policy established under the earlier proclamations regarding aliens and
restricted areas, but did not rely on the authority of Alien Enemy Act, as the previous
proclamations had done. Although the Department of Justice denied that the
transfer of authority to the Department of War was motivated by a desire to avoid
constitutional issues with regard to the restriction or detention of citizens, the House
Select Committee Investigating National Defense Migration found the shift in
authority significant, as it appeared to rely on the nation’s war powers directly, and
could find no support in the Alien Enemy Act with respect to citizens. The
summary exercise of authority under that act to restrain aliens was thought by the
Committee to be untenable in the case of U.S. citizens, and the War Department felt
congressional authorization was necessary to provide authority for its enforcement.
Congress granted the War Department’s request, enacting with only minor
changes the proposed legislation providing for punishment for the knowing violation
of any exclusion order issued pursuant to Executive Order 9066 or similar executive
order. A policy of mass evacuation from the West Coast of persons of Japanese
descent — citizens as well as aliens — followed, which soon transformed into a
system of compulsive internment at “relocation centers.” Persons of German and
Italian descent (and others) were treated more selectively, receiving prompt (though
probably not full and fair) loyalty hearings118 to determine whether they should be
interned, paroled, or released. The disparity of treatment was explained by the theory
that it would be impossible or too time-consuming to attempt to distinguish the loyal
from the disloyal among persons of Japanese descent.
These people were 'evacuated' from the West Coast without being given any more than a relatively brief notice, sometimes just a few days. They had no recourse to legal action at all, at least at first. Some people were taken by the F.B.I. and placed in separate camps, without formal charges, trial, or right to defend themselves. In other words, simply because the President issued an executive order, all the 'normal' rights of the Japanese-Americans, many of which were actually American citizens, were completely suspended.
In a series of cases, the Supreme Court limited but did not explicitly strike down
the internment program. In the Hirabayashi case, the Supreme Court found the
curfew imposed upon persons of Japanese ancestry to be constitutional as a valid
war-time security measure, even as implemented against U.S. citizens, emphasizing
the importance of congressional ratification of the Executive Order. Hirabayashi
was also indicted for violating an order excluding him from virtually the entire west
coast, but the Court did not review the constitutionality of the exclusion measure
because the sentences for the two charges were to run concurrently. Because the
restrictions affected citizens solely because of their Japanese descent, the Court
framed the relevant inquiry as a question of equal protection, asking
whether in the light of all the facts and circumstances there was any substantial
basis for the conclusion, in which Congress and the military commander united,
that the curfew as applied was a protective measure necessary to meet the threat
of sabotage and espionage which would substantially affect the war effort and
which might reasonably be expected to aid a threatened enemy invasion.
In a concurring opinion, Justice Douglas added that in effect, due process
considerations did not apply to ensure that only individuals who were actually
disloyal were affected by the restrictions, even if it were to turn out that only a small
percentage of Japanese-Americans were actually disloyal.123 However, he noted that
a more serious question would arise if a citizen did not have an opportunity at some
point to demonstrate his loyalty in order to be reclassified and no longer subject to
the restrictions.
In Korematsu, the Supreme Court upheld the conviction of an American
citizen for remaining in his home, despite the fact that it was located on a newly
declared “Military Area” and was thus off-limits to persons of Japanese descent.
Fred Korematsu also challenged the detention of Japanese-Americans in internment
camps, but the Court declined to consider the constitutionality of the detention itself,
as Korematsu’s conviction was for violating the exclusion order only. The Court, in
effect, validated the treatment of citizens in a manner similar to that of enemy aliens
by reading Executive Order 9066 together with the act of Congress ratifying it as
sufficient authority under the combined war powers of the President and Congress,
thus avoiding having to address the statutory scope of the Alien Enemy Act.
In Ex parte Endo, however, decided the same day as Korematsu, the Supreme
Court did not find adequate statutory underpinnings to support the internment of
loyal citizens. The Court ruled that the authority to exclude persons of Japanese
ancestry from declared military areas did not encompass the authority to detain
concededly loyal Americans. Such authority, it found, could not be implied from the
power to protect against espionage and sabotage during wartime. The Court
declined to decide the constitutional issue presented by the evacuation and internment
program, instead interpreting the executive order, along with the act of March 27,
1942 (congressional ratification of the order), narrowly to give it the greatest
chance of surviving constitutional review. Accordingly, the Court noted that
detention in Relocation Centers was not mentioned in the statute or executive order,
but was developed during the implementation of the program. As such, the authority
to detain citizens could only be found by implication in the act, and must therefore
be found to serve the ends Congress and the President had intended to reach. Since
the detention of a loyal citizen did not further the campaign against espionage and
sabotage, it could not be authorized by implication.
The Court avoided the question of whether internment of citizens would be
constitutionally permissible where loyalty were at issue or where Congress explicitly
authorized it, but the Court’s use of the term “concededly loyal” to limit the scope
of the finding may be read to suggest that there is a Fifth Amendment guarantee of
due process applicable to a determination of loyalty or dangerousness. While the
Fifth Amendment would not require the same process that is due in a criminal case,
it would likely require at least reasonable notice of the allegations and an opportunity
for the detainee to be heard.
At least one American with no ethnic ties to or association with an enemy
country was subjected to an exclusion order issued pursuant to Executive Order
9066. Homer Wilcox, a native of Ohio, was excluded from his home in San Diego
and removed by military force to Nevada, although the exclusion board had
determined that he had no association with any enemy and was more aptly described
as a “harmless crackpot.” He was the manager of a religious publication that
preached pacifism, and was indicted along with several others for fraud in connection
with the publication. The district court awarded damages in favor of Wilcox, but
the circuit court reversed, finding the exclusion within the authority of the military
command under Executive Order 9066 and 18 U.S.C. § 1383, and holding that
the evidence concerning plaintiff’s activities and associations provided a
reasonable ground for the belief by defendant ... that plaintiff had committed
acts of disloyalty and was engaged in a type of subversive activity and leadership
which might instigate others to carry out activities which would facilitate the
commission of espionage and sabotage and encourage them to oppose measures
taken for the military security of Military Areas Nos. 1 and 2, and that plaintiff’s
presence in the said areas from which he had been excluded would increase the
likelihood of espionage and sabotage and would constitute a danger to military
security of those areas.
The court also found that the act of Congress penalizing violations of military orders
under Executive Order 9066 did not preclude General De Witt from using military
personnel to forcibly eject Wilcox from his home.
In other words, Wilcox was disloyal because he was publishing pacifist materials. This is the same kind of thing that was being done in Japan, although sometimes with fatal consequences for the publisher.
The Japanese internment program has since been widely discredited, the
convictions of some persons for violating the orders have been vacated, and the
victims have received compensation, but the constitutionality of detention of
citizens during war who are deemed dangerous has never expressly been ruled per
se unconstitutional.
Note that. It's very important. Detention of citizens could, under this approach, still be carried out under 'war' conditions. The problem there is to define the word 'war.' World War II was, by anyone's definitions, a war. If the so-called 'war on terror' were to be considered an actual 'war,' then the government could end up interning people again.
In the cases of citizens of other ethnic backgrounds who were
interned or otherwise subject to restrictions under Executive Order 9066, courts
played a role in determining whether the restrictions were justified, sometimes
resulting in the removal of restrictions. Because these persons were afforded a
limited hearing to determine their dangerousness, a court later ruled that the Equal
Protection Clause of the Constitution did not require that they receive compensation
equal to that which Congress granted in 1988 to Japanese-American internees.
It may be argued that Hirabayashi and the other cases validating Executive
Order 9066 (up to a point) support the constitutionality of preventive detention of
citizens during war, at least insofar as the determination of dangerousness of the
individual interned is supported by some evidence and some semblance of due
process is accorded the internee. However, it was emphasized in these cases that
Congress had specifically ratified Executive Order 9066 by enacting 18 U.S.C. §
1383, providing a penalty for violation of military orders issued under the Executive
Order. Thus, even though the restrictions and internments occurred in the midst of
a declared war, a presidential order coupled with specific legislation appear to have
been required to validate the measures. The internment of Japanese-American
citizens without individualized determination of dangerousness was found not to be
authorized by the Executive Order and ratifying legislation (the Court thereby
avoiding the constitutional issue), although the President had issued a separate
Executive Order to set up the War Relocation Authority140 and Congress had given
its tacit support for the internments by appropriating funds for the effort.
From the Footnotes
The footnotes have some interesting things. DeWitt set up five classes of civilians to be affected by the military areas. These included:
1. Class 1: all persons who are suspected of espionage, sabotage, fifth column, or other subversive activity.
2. Japanese aliens. (Issei)
3. American-born persons of Japanese lineage. (Nisei, etc. who were American citizens.)
4. German aliens.
5. Italian aliens.
Main Index
Japan main page
Japanese-American Internment Camps index page
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