I. Civil Liberties included in Constitution
Art. I, Sec. 9: The Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may require it. No
Bill of Attainder or ex post facto Law shall be passed.
Art III, Sec. 2 . . . The Trial of all Crimes, except in Cases of Impeachment, shall be
by Jury; and such Trial shall be held in the State where the said Crimes shall have
been committed; but when not committed within any State, the Trial shall be at such
Place or Places as the Congress may by Law have directed.
Art. III, Sec. 3. Treason against the United States, shall consist only in levying War
against them, or in adhering to their Enemies, giving them Aid and Comfort. No
Person shall be convicted of Treason unless on the Testimony of two Witnesses to
the same overt Act, or on Confession in open Court. . .
II. Bill of Rights
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress of
grievances.
Amendment II
A well regulated Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.
Amendment III
No Soldier shall, in time of peace be quartered in any house, without the consent of the
Owner, nor in time of war, but in a manner to be prescribed by law.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.
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Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on
a presentment or indictment of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War or public danger; nor
shall any person be subject for the same offence to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation.
• No person shall be held to answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand Jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual service in time of War or public danger;
• nor shall any person be subject for the same offence to be twice put in jeopardy of
life or limb;
• nor shall be compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law;
• nor shall private property be taken for public use, without just compensation.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his favor, and to
have the Assistance of Counsel for his defence.
In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have been
previously ascertained by law,
and to be informed of the nature and cause of the accusation;
to be confronted with the witnesses against him;
to have compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
Amendment VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise
reexamined in any Court of the United States, than according to the rules of the
common law.
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Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the people.
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President Abraham Lincoln’s War Address, July 4, 1861
FELLOW CITIZENS OF THE SENATE AND HOUSE OF REPRESENTATIVES:
. . . Soon after the first call for militia it was considered a duty to authorize the
commanding general in proper cases according to his discretion, to suspend the
privilege of the writ of habeas corpus, or in other words to arrest and detain, without
resort to the ordinary processes and forms of law, such individuals as he might deem
dangerous to the public safety. This authority has purposely been exercised but very
sparingly. Nevertheless the legality and propriety of what has been done under it are
questioned and the attention of the country has been called to the proposition that one
who is sworn to "take care that the laws be faithfully executed" should not himself
violate them. Of course some consideration was given to the questions of power and
propriety before this matter was acted upon. The whole of the laws which were required
to be faithfully executed were being resisted and failing of execution in nearly one-third
of the States. Must they be allowed to finally fail of execution, even had it been
perfectly clear that by the use of the means necessary to their execution some single
law, made in such extreme tenderness of the citizen's liberty that practically it relieves
more of the guilty than of the innocent, should to a very limited extent be violated? To
state the question more directly, are all the laws but one to go unexecuted and the
Government itself go to pieces lest that one be violated? Even in such a case would not
the official oath be broken if the Government should be overthrown, when it was
believed that disregarding the single law would tend to preserve it? But it was not
believed that this question was presented. It was not believed that any law was violated.
The provision of the Constitution that "the privilege of the writ of habeas corpus shall
not be suspended unless when in cases of rebellion or invasion the public safety may
require it," is equivalent to a provision -- is a provision -- that such privilege may be
suspended when in cases of rebellion or invasion the public safety does require it. It was
decided that we have a case of rebellion, and that the public safety does require the
qualified suspension of the privilege of the writ which was authorized to be made. Now,
it is insisted that Congress and not the Executive is vested with this power. But the
Constitution itself is silent as to which, or who, is to exercise the power; and as the
provision was plainly made for a dangerous emergency, it cannot be believed the
framers of the instrument intended that in every case the danger should run its course
until Congress could be called together, the very assembling of which might be
prevented, as was intended in this case, by the rebellion.
No more extended argument is now offered, as an opinion at some length will probably
be presented by the Attorney-General. Whether there shall be any legislation upon the
subject, and if any, what, is submitted entirely to the better judgment of Congress. . .
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Ex parte MERRYMAN
17 F. Cas. 144 (Circuit Court, Maryland, 1861)
TANEY, Circuit Justice.
. . . The case, then, is simply this: a military officer, residing in Pennsylvania, issues an
order to arrest a citizen of Maryland, upon vague and indefinite charges, without any
proof, so far as appears; under this order, his house is entered in the night, he is seized
as a prisoner, and conveyed to Fort McHenry, and there kept in close confinement; and
when a habeas corpus is served on the commanding officer, requiring him to produce
the prisoner before a justice of the supreme court, in order that he may examine into the
legality of the imprisonment, the answer of the officer, is that he is authorized by the
president to suspend the writ of habeas corpus at his discretion, and in the exercise of
that discretion, suspends it in this case, and on that ground refuses obedience to the writ.
As the case comes before me, therefore, I understand that the president not only claims
the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate
that discretionary power to a military officer, and to leave it to him to determine
whether he will or will not obey judicial process that may be served upon him. . .
The clause of the constitution, which authorizes the suspension of the privilege of the
writ of habeas corpus, is in the 9th section of the first article. This article is devoted to
the legislative department of the United States, and has not the slightest reference to the
executive department. It begins by providing "that all legislative powers therein granted,
shall be vested in a congress of the United States, which shall consist of a senate and
house of representatives." And after prescribing the manner in which these two
branches of the legislative department shall be chosen, it proceeds to enumerate
specifically the legislative powers which it thereby grants [and legislative powers
which it expressly prohibits]; and at the conclusion of this specification, a clause is
inserted giving congress "the power to make all laws which shall be necessary and
proper for carrying into execution the foregoing powers, and all other powers vested by
this constitution in the government of the United States, or in any department or officer
thereof."
. . . It is the second article of the constitution that provides for the organization of the
executive department, enumerates the powers conferred on it, and prescribes its duties.
And if the high power over the liberty of the citizen now claimed, was intended to be
conferred on the president, it would undoubtedly be found in plain words in this article;
but there is not a word in it that can furnish the slightest ground to justify the exercise of
the power. . .
[The President] is, from necessity, and the nature of his duties, the commander-in-chief
of the army and navy, and of the militia, when called into actual service; but no
appropriation for the support of the army can be made by congress for a longer term
than two years, so that it is in the power of the succeeding house of representatives to
withhold the appropriation for its support, and thus disband it, if, in their judgment, the
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president used, or designed to use it for improper purposes. And although the militia,
when in actual service, is under his command, yet the appointment of the officers is
reserved to the states, as a security against the use of the military power for purposes
dangerous to the liberties of the people, or the rights of the states.
So too, his powers in relation to the civil duties and authority necessarily conferred on
him are carefully restricted, as well as those belonging to his military character. He
cannot appoint the ordinary officers of government, nor make a treaty with a foreign
nation or Indian tribe, without the advice and consent of the senate, and cannot appoint
even inferior officers, unless he is authorized by an act of congress to do so. He is not
empower to arrest any one charged with an offence against the United States, and whom
he may, from the evidence before him, believe to be guilty; nor can he authorize any
officer, civil or military, to exercise this power, for the fifth article of the amendments
to the constitution expressly provides that no person "shall be deprived of life, liberty or
property, without due process of law" -- that is, judicial process. . .
I can see no ground whatever for supposing that the president, in any emergency, or in
any state of things, can authorize the suspension of the privileges of the writ of habeas
corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does
not faithfully execute the laws, if he takes upon himself legislative power, by
suspending the writ of habeas corpus, and the judicial power also, by arresting and
imprisoning a person without due process of law.
Nor can any argument be drawn from the nature of sovereignty, or the necessity of
government, for self-defence in times of tumult and danger. The government of the
United States is one of delegated and limited powers; it derives its existence and
authority altogether from the constitution, and neither of its branches, executive,
legislative or judicial, can exercise any of the powers of government beyond those
specified and granted; for the tenth article of the amendments to the constitution, in
express terms, provides that "the powers not delegated to the United States by the
constitution, nor prohibited by it to the states, are reserved to the states, respectively, or
to the people."
Indeed, the security against imprisonment by executive authority, provided for in the
fifth article of the amendments to the constitution, which I have before quoted, is
nothing more than a copy of a like provision in the English constitution, which had been
firmly established before the declaration of independence. . .
The people of the United Colonies, who had themselves lived under its protection,
while they were British subjects, were well aware of the necessity of this safeguard for
their personal liberty. And no one can believe that, in framing a government intended to
guard still more efficiently the rights and liberties of the citizen, against executive
encroachment and oppression, they would have conferred on the president a power
which the history of England had proved to be dangerous and oppressive in the hands of
the crown; and which the people of England had compelled it to surrender, after a long
and obstinate struggle on the part of the English executive to usurp and retain it. . .
6
[T]he military authority in this case has gone far beyond the mere suspension of
the privilege of the writ of habeas corpus. It has, by force of arms, thrust aside the
judicial authorities and officers to whom the constitution has confided the power and
duty of interpreting and administering the laws, and substituted a military government
in its place, to be administered and executed by military officers. For, at the time these
proceedings were had against John Merryman, the district judge of Maryland, the
commissioner appointed under the act of congress, the district attorney and the marshal,
all resided in the city of Baltimore, a few miles only from the home of the prisoner.
Up to that time, there had never been the slightest resistance or obstruction to the
process of any court or judicial officer of the United States, in Maryland, except by the
military authority. And if a military officer, or any other person, had reason to believe
that the prisoner had committed any offence against the laws of the United States, it
was his duty to give information of the fact and the evidence to support it, to the district
attorney; it would then have become the duty of that officer to bring the matter before
the district judge or commissioner, and if there was sufficient legal evidence to justify
his arrest, the judge or commissioner would have issued his warrant to the marshal to
arrest him; and upon the hearing of the case, would have held him to bail, or committed
him for trial, according to the character of the offence, as it appeared in the testimony,
or would have discharged him immediately, if there was not sufficient evidence to
support the accusation. There was no danger of any obstruction or resistance to the
action of the civil authorities, and therefore no reason whatever for the interposition of
the military.
Yet, under these circumstances, a military officer, stationed in Pennsylvania, without
giving any information to the district attorney, and without any application to the
judicial authorities, assumes to himself the judicial power in the district of Maryland;
undertakes to decide what constitutes the crime of treason or rebellion; what evidence
(in indeed he required any) is sufficient to support the accusation and justify the
commitment; and commits the party, without a hearing, even before himself, to close
custody, in a strongly garrisoned fort, to be there held, it would seem, during the
pleasure of those who committed him.
The constitution provides, as I have before said, that "no person shall be deprived of
life, liberty or property, without due process of law." It declares that "the right of the
people to be secure in their persons, houses, papers and effects, against unreasonable
searches and seizures, shall not be violated; and no warrant shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized." It provides that the party accused
shall be entitled to a speedy trial in a court of justice.
These great and fundamental laws, which congress itself could not suspend, have been
disregarded and suspended, like the writ of habeas corpus, by a military order,
supported by force of arms. Such is the case now before me, and I can only say that if
the authority which the constitution has confided to the judiciary department and
judicial officers, may thus, upon any pretext or under any circumstances, be usurped by
the military power, at its discretion, the people of the United States are no longer living
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under a government of laws, but every citizen holds life, liberty and property at the will
and pleasure of the army officer in whose military district he may happen to be found.
In such a case, my duty was too plain to be mistaken. I have exercised all the power
which the constitution and laws confer upon me, but that power has been resisted by a
force too strong for me to overcome. It is possible that the officer who has incurred this
grave responsibility may have misunderstood his instructions, and exceeded the
authority intended to be given him; I shall, therefore, order all the proceedings in this
case, with my opinion, to be filed and recorded in the circuit court of the United States
for the district of Maryland, and direct the clerk to transmit a copy, under seal, to the
president of the United States. It will then remain for that high officer, in fulfillment
of his constitutional obligation to "take care that the laws be faithfully executed," to
determine what measures he will take to cause the civil process of the United States to
be respected and enforced.
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Ex parte Vallandingham, 68 U.S. 243 (1863)
PRIOR HISTORY:
THIS case arose on the petition of Clement L. Vallandigham for a certiorari, to be
directed to the Judge Advocate General of the Army of the United States, to send up to
this court, for its review, the proceedings of a military commission, by which the said
Vallandigham had been tried and sentenced to imprisonment; the facts of the case, as
derived from the statement of the learned Justice (WAYNE) who delivered the opinion
of the court, having been as follows:
Major-General Burnside, commanding the military department of Ohio, issued a special
order, No. 135, on the 21st April, 1863, by which a military commission was appointed
to meet at Cincinnati, Ohio, on the 22d of April, or as soon thereafter as practicable, for
the trial of such persons as might be brought before it. There was a detail of officers to
constitute it, and a judge advocate appointed.
The same general had, previously, on the 13th of April, 1863, issued a general order,
No. 38, declaring, for the information of all persons concerned, that thereafter all
persons found within his lines who should commit acts for the benefit of the enemies of
our country, should be tried as spies or traitors, and if convicted should suffer death;
and among other acts prohibited, was the habit of declaring sympathies for the enemy.
The order issued by General Burniside declared that persons committing such offences
would be at once arrested, with a view to being tried as above stated, or to be sent
beyond his lines into the lines of their friends; that it must be distinctly understood that
treason, expressed or implied, would not be tolerated in his department.
On the 5th of May, 1863, Vallandigham, a resident of the State of Ohio, and a citizen of
the United States, was arrested at his residence and taken to Cincinnati, and there
imprisoned. On the following day, he was arraigned before a military commission on a
charge of having expressed sympathies for those in arms against the Government of the
United States, and for having uttered, in a speech at a public meeting, disloyal
sentiments and opinions, with the object and purpose of weakening the power of the
Government in its efforts for the suppression of an unlawful rebellion.
The specification under the charge was, that he, the said Vallandigham, a citizen of
Ohio, on the 1st of May, 1863, at Mount Vernon, in Knox County, Ohio, did publicly
address a large meeting of persons, and did utter sentiments, in words or to the effect,
"that the present war was a wicked, cruel, and unnecessary war, one not waged for the
preservation of the Union, but for the purpose of crushing out liberty and to erect a
despotism; a war for the freedom of the blacks and the enslavement of the whites; and
that if the administration had not wished otherwise, that the war could have been
honorably terminated long ago; that peace might have been honorably made by listening
to the proposed intermediation of France; that propositions, by which the Southern
States could be won back, and the South guaranteed their rights under the Constitution,
had been rejected the day before the late battle of Fredericksburg by Lincoln and his
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minions, meaning the President of the United States, and those under him in authority.
Also charging that the Government of the United States was about to appoint military
marshals in every district to restrain the people of their liberties, and to deprive them of
their rights and privileges, characterizing General Order No. 38, from headquarters of
the Department of the Ohio, as a base usurpation of arbitrary authority, inviting his
hearers to resist the same, by saying, the sooner the people inform the minions of
usurped power that they will not submit to such restrictions upon their liberties, the
better; and adding, that he was at all times and upon all occasions resolved to do
what he could to defeat the attempts now being made to build up a monarchy upon the
ruins of our free government, and asserting that he firmly believed, as he had said six
months ago, that the men in power are attempting to establish a despotism in this
country, more cruel and oppressive than ever existed before."
The prisoner, on being arraigned, denied the jurisdiction of the military commission,
and refused to plead either to the charge or specification. Thereon, the members of the
commission, after private consultation, directed the judge advocate to enter a plea of
Not Guilty, and to proceed with the trial, with an allowance to the petitioner to call
witnesses to rebut the evidence which might be introduced against him to establish the
charge. The next day the commission proceeded with the trial. Seven members of it
were present, and tried the charge in due form of military law. The prisoner exercised
his right to call witnesses, and to cross-examine those who were sworn for the
prosecution. At his request he had the aid of counsel, and the court adjourned to enable
him to procure it. . .
The finding and sentence were, that Vallandigham was guilty of the charge and
specification, except so much of the latter, "as that propositions by which the Southern
States could be won back and guaranteed in their rights under the Constitution had been
rejected the day before the battle of Fredericksburg, by Lincoln and his minions,
meaning the President of the United States, and those under him in authority;" and the
words, "asserting that he firmly believed, as he had asserted six months age, that the
men in power are attempting to establish a despotism in this country more oppressive
than ever existed before." As to those words the prisoner was not guilty; but of the
charge he was guilty, and the commission, therefore, sentenced him to be placed in
close confinement in some fortress of the United States, to be designated by the
commanding officer of this department, there to be kept during the war.
The finding and sentence were approved and confirmed by General Burnside, in an
order bearing date the 16th of May, 1863, and Fort Warren was designated as the place
of imprisonment. On the 19th of May, 1863, the President, in commutation of the
sentence, directed Major-General Burnside to send the prisoner, without delay, to the
headquarters of General Rosecrans, then in Tennessee, to be by him put beyond our
military lines; which order was executed. . .
Mr. Justice WAYNE, after stating the case, much as precedes, delivered the opinion of
the court:
10
General Burnside acted in the matter as the general commanding the Ohio Department,
in conformity with the instructions for the government of the armies of the United
States, approved by the President of the United States, and published by the Assistant
Adjutant-General, by order of the Secretary of War, on the 24th of April, 1863.
It is affirmed in these instructions, that military jurisdiction is of two kinds. First, that
which is conferred and defined by statute; second, that which is derived from the
common law of war. "Military offences, under the statute, must be tried in the manner
therein directed; but military offences, which do not come within the statute, must be
tried and punished under the common law of war. The character of the courts which
exercise these jurisdictions depends upon the local law of each particular county."
In the armies of the United States, the first is exercised by courts-martial, while cases
which do not come within the "rules and regulations of war," or the jurisdiction
conferred by statute or court-martial, are tried by military commissions.
These jurisdictions are applicable, not only to war with foreign nations, but to a
rebellion, when a part of a country wages war against its legitimate government,
seeking to throw off all allegiance to it, to set up a government of its own. . .
The appellate powers of the Supreme Court, as granted by the Constitution, are limited
and regulated by the acts of Congress, and must be exercised subject to the exceptions
and regulations made by Congress. In other words, the petition before us we think not to
be within the letter or spirit of the grants of appellate jurisdiction to the Supreme Court.
It is not in law or equity within the meaning of those terms as used in the 3d article of
the Constitution. Nor is a military commission a court within the meaning of the 14th
section of the Judiciary Act of 1789. That act is denominated to be one to establish the
judicial courts of the United States, and the 14th section declares that all the
"before-mentioned courts" of the United States shall have power to issue writs of habeas
corpus, and all other writs not specially provided for by statute, which may be necessary
for the exercise of their respective jurisdictions, agreeably to the principles and usages
of law. The words in the section, "the before-mentioned"
courts, can only have reference to such courts as were established in the preceding part
of the act, and excludes the idea that a court of military commission can be one of them.
. . . Nor can it be said that the authority to be exercised by a military commission is
judicial in that sense. It involves discretion to examine, to decide and sentence, but
there is no original jurisdiction in the Supreme Court to issue a writ of habeas to review
or reverse its proceedings, or the writ of certiorari to revise the proceedings of a military
commission. . .
For the reasons given, our judgment is, that the writ of certiorari prayed for to revise
and review the proceedings of the military commission, by which Clement L.
Vallandigham was tried, sentenced, and imprisoned, must be denied, and so do we order
accordingly.
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Ex parte Milligan, 71 U.S. 2 (1866)
Mr. JUSTICE DAVIS delivered the opinion of the Court.
. . . The controlling question in the case is this: Upon the facts stated in Milligan's
petition, and the exhibits filed, had the military commission mentioned in it jurisdiction,
legally, to try and sentence him? Milligan, not a resident of one of the rebellious states,
or a prisoner of war, but a citizen of Indiana for twenty years past, and never in the
military or naval service, is, while at his home, arrested by the military power of the
United States, imprisoned, and, on certain criminal charges preferred against him, tried,
convicted, and sentenced to be hanged by a military commission, organized under the
direction of the military commander of the military district of Indiana. Had this tribunal
the legal power and authority to try and punish this man?
No graver question was ever considered by this court, nor one which more nearly
concerns the rights of the whole people; for it is the birthright of every American citizen
when charged with crime, to be tried and punished according to law. . . By the
protection of the law human rights are secured; withdraw that protection, and they are at
the mercy of wicked rulers, or the clamor of an excited people. If there was law to
justify this military trial, it is not our province to interfere; if there was not, it is our duty
to declare the nullity of the whole proceedings. . . By [the] Constitution and the laws
authorized by it this question must be determined. The provisions of that instrument on
the administration of criminal justice are too plain and direct, to leave room for
misconstruction or doubt of their true meaning. Those applicable to this case are
found in that clause of the original Constitution which says, "That the trial of all crimes,
except in case of impeachment, shall be by jury;" and in the fourth, fifth, and sixth
articles of the amendments. The fourth proclaims the right to be secure in person and
effects against unreasonable search and seizure; and directs that a judicial warrant shall
not issue "without proof of probable cause supported by oath or affirmation." The fifth
declares "that no person shall be held to answer for a capital or otherwise infamous
crime unless on presentment by a grand jury, except in cases arising in the land or naval
forces, or in the militia, when in actual service in time of war or public danger, nor be
deprived of life, liberty, or property, without due process of law." And the sixth
guarantees the right of trial by jury, in such manner and with such regulations that with
upright judges, impartial juries, and an able bar, the innocent will be saved and the
guilty punished. It is in these words: "In all criminal prosecutions the accused shall
enjoy the right to a speedy and public trial by an impartial jury of the state and district
wherein the crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the accusation, to
be confronted with the witnesses against him, to have compulsory process for obtaining
witnesses in his favor, and to have the assistance of counsel for his defence." These
securities for personal liberty thus embodied, were such as wisdom and experience had
demonstrated to be necessary for the protection of those accused of crime. And so
strong was the sense of the country of their importance, and so jealous were the people
that these rights, highly prized, might be denied them by implication, that when the
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original Constitution was proposed for adoption it encountered severe opposition; and
but for the belief that it would be so amended as to embrace them, it would never
have been ratified.
Time has proven the discernment of our ancestors; for even these provisions, expressed
in such plain English words, that it would seem the ingenuity of man could not evade
them, are now, after the lapse of more than seventy years, sought to be avoided. Those
great and good men foresaw that troublous times would arise, when rules and people
would become restive under restraint, and seek by sharp and decisive measures to
accomplish ends deemed just and proper; and that the principles of constitutional liberty
would be in peril, unless established by irrepealable law. The history of the world had
taught them that what was done in the past might be attempted in the future. The
Constitution of the United States is a law for rulers and people, equally in war and in
peace, and covers with the shield of its protection all classes of men, at all times, and
under all circumstances. No doctrine, involving more pernicious consequences, was
ever invented by the wit of man than that any of its provisions can be suspended during
any of the great exigencies of government. Such a doctrine leads directly to anarchy or
despotism, but the theory of necessity on which it is based is false; for the government,
within the Constitution, has all the powers granted to it, which are necessary to preserve
its existence; as has been happily proved by the result of the great effort to throw off
its just authority.
Have any of the rights guaranteed by the Constitution been violated in the case of
Milligan? and if so, what are they?
Every trial involves the exercise of judicial power; and from what source did the
military commission that tried him derive their authority? Certainly no part of the
judicial power of the country was conferred on them; because the Constitution expressly
vests it "in one supreme court and such inferior courts as the Congress may from time
to time ordain and establish," and it is not pretended that the commission was a court
ordained and established by Congress. They cannot justify on the mandate of the
President; because he is controlled by law, and has his appropriate sphere of duty,
which is to execute, not to make, the laws; and there is "no unwritten criminal code to
which resort can be had as a source of jurisdiction."
But it is said that the jurisdiction is complete under the "laws and usages of war."
It can serve no useful purpose to inquire what those laws and usages are, whence they
originated, where found, and on whom they operate; they can never be applied to
citizens in states which have upheld the authority of the government, and where the
courts are open and their process unobstructed. This court has judicial knowledge that in
Indiana the Federal authority was always unopposed, and its courts always open to hear
criminal accusations and redress grievances; and no usage of war could sanction a
military trial there for any offence whatever of a citizen in civil life, in nowise
connected with the military service. Congress could grant no such power; and to the
honor of our national legislature be it said, it has never been provoked by the state of the
13
country even to attempt its exercise. One of the plainest constitutional provisions was,
therefore, infringed when Milligan was tried by a court not ordained and established by
Congress, and not composed of judges appointed during good behavior.
Why was he not delivered to the Circuit Court of Indiana to be proceeded against
according to law? No reason of necessity could be urged against it; because Congress
had declared penalties against the offences charged, provided for their punishment, and
directed that court to hear and determine them. And soon after this military tribunal was
ended, the Circuit Court met, peacefully transacted its business, and adjourned. It
needed no bayonets to protect it, and required no military aid to execute its judgments.
It was held in a state, eminently distinguished for patriotism, by judges commissioned
during the Rebellion, who were provided with juries, upright, intelligent, and selected
by a marshal appointed by the President. The government had no right to conclude that
Milligan, if guilty, would not receive in that court merited punishment; for its records
disclose that it was constantly engaged in the trial of similar offences, and was never
interrupted in its administration of criminal justice. If it was dangerous, in the distracted
condition of affairs, to leave Milligan unrestrained of his liberty, because he "conspired
against the government, afforded aid and comfort to rebels, and incited the people to
insurrection," the law said arrest him, confine him closely, render him powerless to do
further mischief; and then present his case to the grand jury of the district, with proofs
of his guilt, and, if indicted, try him according to the course of the common law. If this
had been done, the Constitution would have been vindicated, the law of 1863 enforced,
and the securities for personal liberty preserved and defended.
Another guarantee of freedom was broken when Milligan was denied a trial by jury.
The great minds of the country have differed on the correct interpretation to be given to
various provisions of the Federal Constitution; and judicial decision has been often
invoked to settle their true meaning; but until recently no one ever doubted that the right
of trial by jury was fortified in the organic law against the power of attack. It is now
assailed; but if ideas can be expressed in words, and language has any meaning, this
right -- one of the most valuable in a free country -- is preserved to every one accused of
crime who is not attached to the army, or navy, or militia in actual service. The sixth
amendment affirms that "in all criminal prosecutions the accused shall enjoy the right to
a speedy and public trial by an impartial jury," language broad enough to embrace all
persons and cases; but the fifth, recognizing the necessity of an indictment, or
resentment, before any one can be held to answer for high crimes, "excepts cases arising
in the land or naval forces, or in the militia, when in actual service, in time of war or
public danger;" and the framers of the Constitution, doubtless, meant to limit the right
of trial by jury, in the sixth amendment, to those persons who were subject to
indictment or presentment in the fifth.
The discipline necessary to the efficiency of the army and navy, required other and
swifter modes of trial than are furnished by the common law courts; and, in pursuance
of the power conferred by the Constitution, Congress has declared the kinds of trial, and
the manner in which they shall be conducted, for offences committed while the party
14
is in the military or naval service. Every one connected with these branches of the
public service is amenable to the jurisdiction which Congress has created for their
government, and, while thus serving, surrenders his right to be tried by the civil courts.
All other persons, citizens of states where the courts are open, if charged with crime, are
guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle,
underlying the whole administration of criminal justice; it is not held by sufferance, and
cannot be frittered away on any plea of state or political necessity. When peace prevails,
and the authority of the government is undisputed, there is no difficulty of preserving
the safeguards of liberty; for the ordinary modes of trial are never neglected, and no one
wishes it otherwise; but if society is disturbed by civil commotion -- if the passions of
men are aroused and the restraints of law weakened, if not disregarded -- these
safeguards need, and should receive, the watchful care of those entrusted with the
guardianship of the Constitution and laws. In no other way can we transmit to posterity
unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution.
It is claimed that martial law covers with its broad mantle the proceedings of this
military commission. The proposition is this: that in a time of war the commander of an
armed force (if in his opinion the exigencies of the country demand it, and of which he
is to judge), has the power, within the lines of his military district, to suspend all civil
rights and their remedies, and subject citizens as well as soldiers to the rule of his will;
and in the exercise of his lawful authority cannot be restrained, except by his superior
officer or the President of the United States.
If this position is sound to the extent claimed, then when war exists, foreign or
domestic, and the country is subdivided into military departments for mere
convenience, the commander of one of them can, if he chooses, within his limits, on the
plea of necessity, with the approval of the Executive, substitute military force for and to
the exclusion of the laws, and punish all persons, as he thinks right and proper, without
fixed or certain rules.
The statement of this proposition shows its importance; for, if true, republican
government is a failure, and there is an end of liberty regulated by law. Martial law,
established on such a basis, destroys every guarantee of the Constitution, and effectually
renders the "military independent of and superior to the civil power" -- the attempt to do
which by the King of Great Britain was deemed by our fathers such an offence, that
they assigned it to the world as one of the causes which impelled them to declare their
independence. Civil liberty and this kind of martial law cannot endure together; the
antagonism is irreconcilable; and, in the conflict, one or the other must perish.
This nation, as experience has proved, cannot always remain at peace, and has no right
to expect that it will always have wise and humane rulers, sincerely attached to the
principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty
and contempt of law, may fill the place once occupied by Washington and Lincoln; and
if this right is conceded, and the calamities of war again befall us, the dangers to human
liberty are frightful to contemplate. If our fathers had failed to provide for just such a
contingency, they would have been false to the trust reposed in them. They knew -- the
15
history of the world told them -- the nation they were founding, be its existence short or
long, would be involved in war; how often or how long continued, human foresight
could not tell; and that unlimited power, wherever lodged at such a time, was especially
hazardous to freemen. For this, and other equally weighty reasons, they secured the
inheritance they had fought to maintain, by incorporating in a written constitution
the safeguards which time had proved were essential to its preservation. Not one of
these safeguards can the President, or Congress, or the Judiciary disturb, except the one
concerning the writ of habeas corpus.
It is essential to the safety of every government that, in a great crisis, like the one we
have just passed through, there should be a power somewhere of suspending the writ of
habeas corpus. In every war, there are men of previously good character, wicked
enough to counsel their fellow-citizens to resist the measures deemed necessary by a
good government to sustain its just authority and overthrow its enemies; and their
influence may lead to dangerous combinations. In the emergency of the times, an
immediate public investigation according to law may not be possible; and yet, the peril
to the country may be too imminent to suffer such persons to go at large.
Unquestionably, there is then an exigency which demands that the government, if it
should see fit in the exercise of a proper discretion to make arrests, should not be
required to produce the persons arrested in answer to a writ of habeas corpus.
The Constitution goes no further. It does not say after a writ of habeas corpus is denied
a citizen, that he shall be tried otherwise than by the course of the common law; if it had
intended this result, it was easy by the use of direct words to have accomplished it. The
illustrious men who framed that instrument were guarding the foundations of civil
liberty against the abuses of unlimited power; they were full of wisdom, and the lessons
of history informed them that a trial by an established court, assisted by an impartial
jury, was the only sure way of protecting the citizen against oppression and wrong.
Knowing this, they limited the suspension to one great right, and left the rest to
remain forever inviolable. But, it is insisted that the safety of the country in time of war
demands that this broad claim for martial law shall be sustained. If this were true, it
could be well said that a country, preserved at the sacrifice of all the cardinal principles
of liberty, is not worth the cost of preservation. Happily, it is not so.
It will be borne in mind that this is not a question of the power to proclaim martial law,
when war exists in a community and the courts and civil authorities are overthrown.
Nor is it a question what rule a military commander, at the head of his army, can impose
on states in rebellion to cripple their resources and quell the insurrection. The
jurisdiction claimed is much more extensive. The necessities of the service, during the
late Rebellion, required that the loyal states should be placed within the limits of certain
military districts and commanders appointed in them; and, it is urged, that this, in a
military sense, constituted them the theatre of military operations; and, as in this case,
Indiana had been and was again threatened with invasion by the enemy, the occasion
was furnished to establish martial law. The conclusion does not follow from the
premises. If armies were collected in Indiana, they were to be employed in another
locality, where the laws were obstructed and the national authority disputed. On her soil
there was no hostile foot; if once invaded, that invasion was at an end, and with it all
16
pretext for martial law. Martial law cannot arise from a threatened invasion. The
necessity must be actual and present; the invasion real, such as effectually closes the
courts and deposes the civil administration.
It is difficult to see how the safety of the country required martial law in Indiana. If any
of her citizens were plotting treason, the power of arrest could secure them, until the
government was prepared for their trial, when the courts were open and ready to try
them. It was as easy to protect witnesses before a civil as a military tribunal; and as
there could be no wish to convict, except on sufficient legal evidence, surely an
ordained and established court was better able to judge of this than a military tribunal
composed of gentlemen not trained to the profession of the law.
It follows, from what has been said on this subject, that there are occasions when
martial rule can be properly applied. If, in foreign invasion or civil war, the courts are
actually closed, and it is impossible to administer criminal justice according to law,
then, on the theatre of active military operations, where war really prevails, there is a
necessity to furnish a substituted for the civil authority, thus overthrown, to preserve the
safety of the army and society; and as no power is left but the military, it is allowed to
govern by martial rule until the laws can have their free course. As necessity creates the
rule, so it limits its duration; for, if this government is continued after the courts are
reinstated, it is a gross usurpation of power. Martial rule can never exist where the
courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is
also confined to the locality of actual war. Because, during the late Rebellion it could
have been enforced in Virginia, where the national authority was overturned and the
courts driven out, it does not follow that it should obtain in Indiana, where that authority
was never disputed, and justice was always administered. And so in the case of a
foreign invasion, martial rule may become a necessity in one state, when, in another, it
would be "mere lawless violence."
. . . It is proper to say, although Milligan's trial and conviction by a military
commission was illegal, yet, if guilty of the crimes imputed to him, and his guilt had
been ascertained by an established court and impartial jury, he deserved severe
punishment. Open resistance to the measures deemed necessary to subdue a great
rebellion, by those who enjoy the protection of government, and have not the excuse
even of prejudice of section to plead in their favor, is wicked; but that resistance
becomes an enormous crime when it assumes the form of a secret political organization,
armed to oppose the laws, and seeks by stealthy means to introduce the enemies of the
country into peaceful communities, there to light the torch of civil war, and thus
overthrow the power of the United States. Conspiracies like these, at such a juncture,
are extremely perilous; and those concerned in them are dangerous enemies to their
country, and should receive the heaviest penalties of the law, as an example to deter
others from similar criminal conduct. It is said the severity of the laws caused them; but
Congress was obliged to enact severe laws to meet the crisis; and as our highest civil
duty is to serve our country when in danger, the late war has proved that rigorous laws,
when necessary, will be cheerfully obeyed by a patriotic people, struggling to preserve
the rich blessings of a free government.
17
The two remaining questions in this case must be answered in the affirmative. The
suspension of the privilege of the writ of habeas corpus does not suspend the writ itself.
The writ issues as a matter of course; and on the return made to it the court decides
whether the party applying is denied the right of proceeding any further with it. . .
. . . [I]t is insisted that Milligan was a prisoner of war, and, therefore, excluded from the
privileges of the statute. It is not easy to see how he can be treated as a prisoner of war,
when he lived in Indiana for the past twenty years, was arrested there, and had not been,
during the late troubles, a resident of any of the states in rebellion. If in Indiana he
conspired with bad men to assist the enemy, he is punishable for it in the courts of
Indiana; but, when tried for the offence, he cannot plead the rights of war; for he was
not engaged in legal acts of hostility against the government, and only such persons,
when captured, are prisoners of war. If he cannot enjoy the immunities attaching
to the character of a prisoner of war, how can he be subject to their pains and penalties?
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
The Espionage Act of May 16, 1918
Be it enacted, That section three of the Act . . . approved June I5, 1917, be . .
amended so as to read as follows:
SEC. 3. Whoever, when the United States is at war, shall willfully make or
convey false reports or false statements with intent to interfere with the operation
or success of the military or naval forces of the United States, or to promote the
success of its enemies, or shall willfully make or convey false reports, or false
statements, or say or do anything except by way of bona fide and not disloyal
advice to an investor . . . with intent to obstruct the sale by the United States of
bonds . . . or the making of loans by or to the United States, or whoever, when
the United States is at war, shall willfully cause . . . or incite . . . insubordination,
disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United
States, or shall willfully obstruct . . . the recruiting or enlistment service of the
United States, and whoever, when the United States is at war, shall willfully utter,
print, write, or publish any disloyal, profane, scurrilous, or abusive language
about the form of government of the United States, or the Constitution of the
United States, or the military or naval forces of the United States, or the flag . . .
or the uniform of the Army or Navy of the United States, or any language
intended to bring the form of government . . . or the Constitution . . . or the
military or naval forces . . . or the flag . . . of the United States into contempt,
scorn, contumely, or disrepute . . . or shall willfully display the flag of any foreign
enemy, or shall willfully . . . urge, incite, or advocate any curtailment of
production in this country of any thing or things . . . necessary or essential to the
prosecution of the war . . . and whoever shall willfully advocate, teach, defend,
or suggest the doing of any of the acts or things in this section enumerated and
whoever shall by word or act support or favor the cause of any country with
which the United States is at war or by word or act oppose the cause of the
United States therein, shall be punished by a fine of not more than $10,000 or
imprisonment for not more than twenty years, or both....
37
Schenck v. United States, 249 U.S. 47, 9 S. Ct. 247, 63 L. Ed. 470 (1919)
MR. JUSTICE HOLMES delivered the opinion of the court.
This is an indictment in three counts. The first charges a conspiracy to violate the
Espionage Act of June 15, 1917, c. 30, § 3, 40 Stat. 217, 219, by causing and
attempting to cause insubordination, &c., in the military and naval forces of the United
States, and to obstruct the recruiting and enlistment service of the United States, when
the United States was at war with the German Empire, to-wit, that the defendants
wilfully conspired to have printed and circulated to men who had been called and
accepted for military service under the Act of May 18, 1917, a document set forth and
alleged to be calculated to cause such insubordination and obstruction. The count
alleges overt acts in pursuance of the conspiracy, ending in the distribution of the
document set forth. The second count alleges a conspiracy to commit an offence against
the United States, to-wit, to use the mails for the transmission of matter declared to be
non-mailable by Title XII, § 2 of the Act of June 15, 1917, to-wit, the above mentioned
document, with an averment of the same overt acts. The third count charges an unlawful
use of the mails for the transmission of the same matter and otherwise as above. The
defendants were found guilty on all the counts. . .
The document in question upon its first printed side recited the first section of the
Thirteenth Amendment, said that the idea embodied in it was violated by the
Conscription Act and that a conscript is little better than a convict. In impassioned
language it intimated that conscription was despotism in its worst form and a monstrous
wrong against humanity in the interest of Wall Street's chosen few. It said "Do not
submit to intimidation," but in form at least confined itself to peaceful measures such as
a petition for the repeal of the act. The other and later printed side of the sheet was
headed "Assert Your Rights." It stated reasons for alleging that any one violated the
Constitution when he refused to recognize "your right to assert your opposition to the
draft," and went on "If you do not assert and support your rights, you are helping to
deny or disparage rights which it is the solemn duty of all citizens and residents of the
United States to retain." It described the arguments on the other side as coming from
cunning politicians and a mercenary capitalist press, and even silent consent to the
conscription law as helping to support an infamous conspiracy. It denied the power to
send our citizens away to foreign shores to shoot up the people of other lands, and
added that words could not express the condemnation such cold-blooded ruthlessness
deserves, &c., &c., winding up "You must do your share to maintain, support and
uphold the rights of the people of this country." Of course the documents would not
have been sent unless it had been intended to have some effect, and we do not see what
effect it could be expected to have upon persons subject to the draft except to influence
them to obstruct the carrying of it out. The defendants do not deny that the jury might
find against them on this point.
But it is said, suppose that that was the tendency of this circular, it is protected by the
First Amendment to the Constitution. Two of the strongest expressions are said to be
quoted respectively from well-known public men. . . We admit that in many places and
38
in ordinary times the defendants in saying all that was said in the circular would have
been within their constitutional rights. But the character of every act depends upon the
circumstances in which it is done. The most stringent protection of free speech would
not protect a man in falsely shouting fire in a theatre and causing a panic. It does not
even protect a man from an injunction against uttering words that may have all the
effect of force. The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that they
will bring about the substantive evils that Congress has a right to prevent. It is a
question of proximity and degree. When a nation is at war many things that might be
said in time of peace are such a hindrance to its effort that their utterance will not be
endured so long as men fight and that no Court could regard them as protected by any
constitutional right. It seems to be admitted that if an actual obstruction of the recruiting
service were proved, liability for words that produced that effect might be enforced. The
statute of 1917 in § 4 punishes conspiracies to obstruct as well as actual obstruction. If
the act, (speaking, or circulating a paper,) its tendency and the intent with which it is
done are the same, we perceive no ground for saying that success alone warrants
making the act a crime. . .
39
Abrams et al. v. United States, 250 U.S. 616, 40 S. Ct. 17, 63 L. Ed. 1173 (1919)
MR. JUSTICE CLARKE delivered the opinion of the court.
On a single indictment, containing four counts, the five plaintiffs in error, hereinafter
designated the defendants, were convicted of conspiring to violate provisions so the
Espionage Act. . .
It was charged in each count of the indictment that it was a part of the conspiracy that
the defendants would attempt to accomplish their unlawful purpose by printing, writing
and distributing in the City of New York many copies of a leaflet or circular, printed in
the English language, and of another printed in the Yiddish language, copies of which,
properly identified, were attached to the indictment.
All of the five defendants were born in Russia. They were intelligent, had considerable
schooling, and at the time they were arrested they had lived in the United States terms
varying from five to ten years, but none of them had applied for naturalization. Four of
them testified as witnesses in their own behalf and of these, three frankly avowed that
they were "rebels," "revolutionists," "anarchists," that they did not believe in
government in any form, and they declared that they had no interest whatever in the
Government of the United States. The fourth defendant testified that he was a "socialist"
and believed in "a proper kind of government, not capitalistic," but in his classification
the Government of the United States was "capitalistic."
It was admitted on the trial that the defendants had united to print and distribute the
described circulars and that five thousand of them had been printed and distributed
about the 22d day of August, 1918. The group had a meeting place in New York City,
in rooms rented by defendant Abrams, under an assumed name, and there the subject of
printing the circulars was discussed about two weeks before the defendants were
arrested. The defendant Abrams, although not a printer, on July 27, 1918, purchased the
printing outfit with which the circulars were printed and installed it in a basement room
where the work was done at night. The circulars were distributed some by throwing
them from a window of a building where one of the defendants was employed and
others secretly, in New York City.
The defendants pleaded "not guilty," and the case of the Government consisted in
showing the facts we have stated, and in introducing in evidence copies of the two
printed circulars attached to the indictment, a sheet entitled "Revolutionists Unite for
Action," written by the defendant Lipman, and found on him when he was arrested, and
another paper, found at the headquarters of the group, and for which Abrams assumed
responsibility.
Thus the conspiracy and the doing of the overt acts charged were largely admitted and
were fully established.
40
On the record thus described it is argued, somewhat faintly, that the acts charged against
the defendants were not unlawful because within the protection of that freedom of
speech and of the press which is guaranteed by the First Amendment to the Constitution
of the United States, and that the entire Espionage Act is unconstitutional because in
conflict with that Amendment. . .
The first of the two articles attached to the indictment is conspicuously headed, "The
Hypocrisy of the United States and her Allies." After denouncing President Wilson as a
hypocrite and a coward because troops were sent into Russia, it proceeds to assail our
Government in general, saying:
"His [the President's] shameful, cowardly silence about the intervention in Russia
reveals the hypocrisy of the plutocratic gang in Washington and vicinity."
It continues:
"He [the President] is too much of a coward to come out openly and say: 'We
capitalistic nations cannot afford to have a proletarian republic in Russia.'"
Among the capitalistic nations Abrams testified the United States was included.
Growing more inflammatory as it proceeds, the circular culminates in:
"The Russian Revolution cries: Workers of the World! Awake! Rise! Put down your
enemy and mine!
"Yes! friends, there is only one enemy of the workers of the world and that is
CAPITALISM."
This is clearly an appeal to the "workers" of this country to arise and put down by force
the Government of the United States which they characterize as their "hypocritical,"
"cowardly" and "capitalistic" enemy.
It concludes:
"Awake! Awake, you Workers of the World!
"REVOLUTIONISTS."
The second of the articles was printed in the Yiddish language and in the translation is
headed, "Workers -- Wake up." After referring to "his Majesty, Mr. Wilson, and the rest
of the gang; dogs of all colors!", it continues: "Workers, Russian emigrants, you who
had the least belief in the honesty of our Government," which defendants admitted
referred to the United States Government, "must now throw away all confidence, must
spit in the face the false, hypocritic, military propaganda which has fooled you so
relentlessly, calling forth your sympathy, your help, to the prosecution of the war."
41
The purpose of this obviously was to persuade the persons to whom it was addressed to
turn a deaf ear to patriotic appeals in behalf of the Government of the United States, and
to cease to render it assistance in the prosecution of the war.
It goes on:
"With the money which you have loaned, or are going to loan them, they will make
bullets not only for the Germans, but also for the Workers Soviets of Russia. Workers in
the ammunition factories, you are producing bullets, bayonets, cannon, to murder not
only the Germans, but also your dearest, best, who are in Russia and are fighting for
freedom."
It will not do to say, as is now argued, that the only intent of these defendants was to
prevent injury to the Russian cause. Men must be held to have intended, and to be
accountable for, the effects which their acts were likely to produce. Even if their
primary purpose and intent was to aid the cause of the Russian Revolution, the plan of
action which they adopted necessarily involved, before it could be realized, defeat of
the war program of the United States, for the obvious effect of this appeal, if it should
become effective, as they, hoped it might, would be to persuade persons of character
such as those whom they regarded themselves as addressing, not to aid government
loans and not to work in ammunition factories, where their work would produce
"bullets, bayonets, cannon" and other munitions of war, the use of which would cause
the "murder" of Germans and Russians.
Again, the spirit becomes more bitter as it proceeds to declare that --
"America and her Allies have betrayed (the Workers). Their robberish aims are clear to
all men. The destruction of the Russian Revolution, that is the politics of the march to
Russia.
Workers, our reply to the barbaric intervention has to be a general strike! An open
challenge only will let the Government know that not only the Russian Worker fights
for freedom, but also here in America lives the spirit of Revolution."
This is not an attempt to bring about a change of administration by candid discussion,
for no matter what may have incited the outbreak on the part of the defendant
anarchists, the manifest purpose of such a publication was to create an attempt to defeat
the war plans of the Government of the United States, by bringing upon the country the
paralysis of a general strike, thereby arresting the production of all munitions and other
things essential to the conduct of the war.
This purpose is emphasized in the next paragraph, which reads:
42
"Do not let the Government scare you will their wild punishment in prisons, hanging
and shooting. We must not and will not betray the splendid fighters of Russia. Workers,
up to fight."
After more of the same kind, the circular concludes:
"Woe unto those who will be in the way of progress. Let solidarity live!"
It is signed, "The Rebels."
That the interpretation we have put upon these articles, circulated in the greatest port of
our land, from which great numbers of soldiers were at the time taking ship daily, and in
which great quantities of war supplies of every kind were at the time being
manufactured for transportation overseas, is not only the fair interpretation of them, but
that it is the meaning which their authors consciously intended should be conveyed by
them to others is further shown by the additional writings found in the meeting place of
the defendant group and on the person of one of them. One of these circulars is headed:
"Revolutionists! Unite for Action!"
After denouncing the President as "Our Kaiser" and the hypocrisy of the United States
and her Allies, this article concludes:
"Socialists, Anarchists, Industrial Workers of the World, Socialists, Labor party men
and other revolutionary organizations Unite for action and let us save the Workers'
Republic of Russia!
"Know you lovers of freedom that in order to save the Russian revolution, we must
keep the armies of the allied countries busy at home."
Thus was again avowed the purpose to throw the country into a state of revolution if
possible and to thereby frustrate the military program of the Government.
The remaining article, after denouncing the President for what is characterized as
hostility to the Russian revolution, continues:
"We, the toilers of America, who believe in real liberty, shall pledge ourselves, in case
the United States will participate in that bloody conspiracy against Russia, to create so
great a disturbance that the autocrats of America shall be compelled to keep their armies
at home, and not be able to spare any for Russia."
It concludes with this definite threat of armed rebellion:
"If they will use arms against the Russian people to enforce their standard of order, so
will we use arms, and they shall never see the ruin of the Russian Revolution."
43
These excerpts sufficiently show, that while the immediate occasion for this particular
outbreak of lawlessness, on the part of the defendant alien anarchists, may have been
resentment caused by our Government sending troops into Russia as a strategic
operation against the Germans on the eastern battle front, yet the plain purpose of their
propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots,
and, as they hoped, revolution, in this country for the purpose of embarrassing and if
possible defeating the military plans of the Government in Europe. A technical
distinction may perhaps be taken between disloyal and abusive language applied to the
form of our government or language intended to bring the form of our government into
contempt and disrepute, and language of like character and intended to produce like
results directed against the President and Congress, the agencies through which that
form of government must function in time of war. But it is not necessary to a decision
of this case to consider whether such distinction is vital or merely formal, for the
language of these circulars was obviously intended to provoke and to encourage
resistance to the United States in the war, as the third count runs, and, the defendants, in
terms, plainly urged and advocated a resort to a general strike of workers in ammunition
factories for the purpose of curtailing the production of ordnance and munitions
necessary and essential to the prosecution of the war as is charged in the fourth count.
Thus it is clear not only that some evidence but that much persuasive evidence was
before the jury tending to prove that the defendants were guilty as charged . . .
MR. JUSTICE HOLMES dissenting.
...
No argument seems to me necessary to show that these pronouncements in no way
attack the form of government of he United States. . .
I never have seen any reason to doubt that the questions of law that alone were before
this Court in the cases of Schenck, Frohwerk and Debs, 249 U.S. 47, 204, 211, were
rightly decided. I do not doubt for a moment that by the same reasoning that would
justify punishing persuasion to murder, the United States constitutionally may punish
speech that produces or is intended to produce a clear and imminent danger that it will
bring about forthwith certain substantive evils that the United States constitutionally
may seek to prevent. The power undoubtedly is greater in time of war than in time of
peace because war opens dangers that do not exist at other times.
But as against dangers peculiar to war, as against others, the principle of the right to free
speech is always the same. It is only the present danger of immediate evil or an intent to
bring it about that warrants Congress in setting a limit to the expression of opinion
where private rights are not concerned. Congress certainly cannot forbid all effort to
change the mind of the country. Now nobody can suppose that the surreptitious
publishing of a silly leaflet by an unknown man, without more, would present any
immediate danger that its opinions would hinder the success of the government arms
or have any appreciable tendency to do so. . .
44
In this case sentences of twenty years imprisonment have been imposed for the
publishing of two leaflets that I believe the defendants had as much right to publish as
the Government has to publish the Constitution of the United States now vainly invoked
by them. Even if I am technically wrong and enough can be squeezed from these poor
and puny anonymities to turn the color of legal litmus paper; I will add, even if what I
think the necessary intent were shown; the most nominal punishment seems to me all
that possibly could be inflicted, unless the defendants are to be made to suffer not for
what the indictment alleges but for the creed that they avow -- a creed that I believe to
be the creed of ignorance and immaturity when honestly held, as I see no reason to
doubt that it was held here, but which, although made the subject of examination at the
trial, no one has a right even to consider in dealing with the charges before the Court.
Persecution for the expression of opinions seems to me perfectly logical. If you have no
doubt of your premises or your power and want a certain result with all your heart you
naturally express your wishes in law and sweep away all opposition. To allow
opposition by speech seems to indicate that you think the speech impotent, as when a
man says that he has squared the circle, or that you do not care whole-heartedly for the
result, or that you doubt either your power or your premises. But when men have
realized that time has upset many fighting faiths, they may come to believe even more
than they believe the very foundations of their own conduct that the ultimate good
desired is better reached by free trade in ideas -- that the best test of truth is the power
of the thought to get itself accepted in the competition of the market, and that truth is
the only ground upon which their wishes safely can be carried out. That at any rate is
the theory of our Constitution. . . I think that we should be eternally vigilant against
attempts to check the expression of opinions that we loathe and believe to be fraught
with death, unless they so imminently threaten immediate interference with the lawful
and pressing purposes of the law that an immediate check is required to save the
country.
45
Milwaukee Leader v. Burleson, Postmaster General of the United States
255 U.S. 407, 41 S. Ct. 352, 65 L. Ed. 704 (1921
MR. JUSTICE CLARKE delivered the opinion of the court.
After a hearing on September 22, 1917, by the Third Assistant Postmaster General, . . .
an order was entered, revoking the second-class mail privilege granted to . . . the
Milwaukee Leader . . . upon the charge that articles were appearing in [the] paper so
violating the provisions of the National Defense Law, which has come to be popularly
known as the Espionage Act of Congress, as to render it "non-mailable" by the express
terms of Title XII of that act. . .
For the purpose of preventing disloyalty and disunion among our people of many
origins, and to the end that a united front should be presented to the enemy, the
Espionage Act, one of the first of the National Defense laws enacted by Congress after
the entry of the United States into the World War, provided severe punishment for any
person who "when the United States is at war" shall wilfully make or convey false
reports or false statements with intent to interfere with the operation and success of the
military or naval forces of the country, or with the intent to promote the success of its
enemies, or who shall cause, or attempt to cause, insubordination, disloyalty, mutiny or
refusal of duty in such forces, or who shall wilfully obstruct the recruiting and
enlistment service of the United States (§ 3). One entire title of this act (Title XII) is
devoted to "Use of Mails," and in the exercise of its . . . power over the mails Congress
therein provided that any newspaper published in violation of any of the provisions of
the act should be "non-mailable" and should not be "conveyed in the mails or delivered
from any post office or by any letter carrier.". . .
The Postmaster General . . . found that, beginning within a week after the declaration of
war against the German Government and continuing to the date of the revocation of the
second-class privilege herein, the [Milwaukee Leader] published in its newspaper
frequently, often daily, articles which contained false reports and false statements,
published with intent to interfere with the success of the military operations of our
Government, to promote the success of its enemies, and to obstruct its recruiting and
enlistment service. For this [reason] . . . the Postmaster General . . . revoked the second-
class privilege which had been granted to the [newspaper]. . . A similar executive
authority with respect to matters within their jurisdiction has been given to the heads of
all the great departments of our Government and is constantly exercised by them.
This is neither a dangerous nor an arbitrary power, as was argued at the bar, for it is not
only subject to review by the courts . . . but it is also subject to control by Congress and
by the President of the United States. Under the Constitution, which we shall find it
vehemently denouncing, the rights of the [newspaper] were, and are, amply protected
by the opportunity thus given it to resort for relief to all three departments of the
Government, if those rights should be invaded by any ruling of the Postmaster General.
All this being settled law, there remains the question whether substantial evidence to
46
support his order may be found in the facts stated in the Postmaster General's answer. . .
In the answer of the Postmaster General there were quoted more than fifty excerpts
from editorial articles which appeared in [the] newspaper at intervals between April 14
and September 13, 1917. . .
Without going much into detail: It was declared in the quoted articles, that the war was
unjustifiable and dishonorable on our part, a capitalistic war, which had been forced
upon the people by a class, to serve its selfish ends. Our Government was denounced as
a "plutocratic republic," a financial and political autocracy, and resident Russians were
praised for defaming it. Other articles denounced the draft law as unconstitutional,
arbitrary and oppressive, with the implied counsel that it should not be respected or
obeyed, and it was represented that soldiers in France were becoming insane in such
numbers that long trains of closed cars were being used to convey them away from the
battle front. It was confidently asserted that the Constitution of the United States was
purposely made difficult of amendment in order that we might not have real democracy
in this country, the President was denounced as an autocrat, and the war legislation as
having been passed by a "rubber stamp Congress." In the guise of argument these
articles sought to convince the readers of them that soldiers could not legally be sent
outside the country and that our Government was waging a war of conquest when
Germany was ready to make an honorable peace. The Food Control Law was
denounced as "Kaiserizing America." It was declared that we were fighting for
commercial supremacy and world domination only and that when the "financial kings"
concluded that further fighting might endanger their loans to the Allies, they would
move for peace, which would quickly come. Our "Allies" were repeatedly condemned
and our enemies frequently praised.
These publications were not designed to secure amendment or repeal of the laws
denounced in them as arbitrary and oppressive, but to create hostility to, and to
encourage violation of, them. Freedom of the press may protect criticism and agitation
for modification or repeal of laws, but it does not extend to protection of him who
counsels and encourages the violation of the law as it exists. The Constitution was
adopted to preserve our Government, not to serve as a protecting screen for those who
while claiming its privileges seek to destroy it.
Without further discussion of the articles, we cannot doubt that they conveyed to
readers of them, false reports and false statements with intent to promote the success of
the enemies of the United States, and that they constituted a willful attempt to cause
disloyalty and refusal of duty in the military and naval forces and to obstruct the
recruiting and enlistment service of the United States, in violation of the Espionage Law
and that therefore their publication brought the paper containing them within the
express terms of Title XII of that law, declaring that such a publication shall be "non-
mailable" and "shall not be conveyed in the mails or delivered from any post office or
by any letter carrier."
While written more adroitly than the usual pro-German propaganda of that time, they
nevertheless prove clearly that the publisher of these articles was deliberately and
47
persistently doing all in its power to deter its readers from supporting the war in which
our Government was engaged and to induce them to lend aid and comfort to its
enemies. The order of the Postmaster General not only finds reasonable support in this
record but is amply justified by it. . .
48
The Case Against the "Reds,‖ by A. Mitchell Palmer
Forum (1920), 63:173- 185.
In this brief review of the work which the Department of Justice has undertaken, to tear
out the radical seeds that have entangled American ideas in their poisonous theories, I
desire not merely to explain what the real menace of communism is, but also to tell how
we have been compelled to clean up the country almost unaided by any virile
legislation. Though I have not been embarrassed by political opposition, I have been
materially delayed because the present sweeping processes of arrests and deportation of
seditious aliens should have been vigorously pushed by Congress last spring. The
failure of this is a matter of record in the Congressional files.
The anxiety of that period in our responsibility when Congress, ignoring the seriousness
of these vast organizations that were plotting to overthrow the Government, failed to
act, has passed. The time came when it was obviously hopeless to expect the hearty
cooperation of Congress in the only way to stamp out these seditious societies in their
open defiance of law by various forms of propaganda.
Like a prairie-fire, the blaze of revolution was sweeping over every American
institution of law and order a year ago. It was eating its way into the homes of the
American workmen, its sharp tongues of revolutionary heat were licking the altars of
the churches, leaping into the belfry of the school bell, crawling into the sacred corners
of American homes, seeking to replace marriage vows with libertine laws, burning up
the foundations of society.
Robbery, not war, is the ideal of communism. This has been demonstrated in Russia,
Germany, and in America. As a foe, the anarchist is fearless of his own life, for his
creed is a fanaticism that admits no respect of any other creed. Obviously it is the creed
of any criminal mind, which reasons always from motives impossible to clean thought.
Crime is the degenerate factor in society.
Upon these two basic certainties, first that the "Reds" were criminal aliens and secondly
that the American Government must prevent crime, it was decided that there could be
no nice distinctions drawn between the theoretical ideals of the radicals and their actual
violations of our national laws. An assassin may have brilliant intellectuality, he may be
able to excuse his murder or robbery with fine oratory, but any theory which excuses
crime is not wanted in America. This is no place for the criminal to flourish, nor will he
do so long as the rights of common citizenship can be exerted to prevent him.
OUR GOVERNMENT IN JEOPARDY
It has always been plain to me that when American citizens unite upon any national
issue they are generally right, but it is sometimes difficult to make the issue clear to
them. If the Department of Justice could succeed in attracting the attention of our
optimistic citizens to the issue of internal revolution in this country, we felt sure there
would be no revolution. The Government was in jeopardy; our private information of
49
what was being done by the organization known as the Communist Party of America,
with headquarters in Chicago, of what was being done by the Communist Internationale
under their manifesto planned at Moscow last March by Trotzky, Lenin and others
addressed "To the Proletariats of All Countries," of what strides the Communist Labor
Party was making, removed all doubt. In this conclusion we did not ignore the definite
standards of personal liberty, of free speech, which is the very temperament and heart of
the people. The evidence was examined with the utmost care, with a personal leaning
toward freedom of thought and word on all questions.
The whole mass of evidence, accumulated from all parts of the country, was
scrupulously scanned, not merely for the written or spoken differences of viewpoint as
to the Government of the United States, but, in spite of these things, to see if the hostile
declarations might not be sincere in their announced motive to improve our social order.
There was no hope of such a thing.
By stealing, murder and lies, Bolshevism has looted Russia not only of its material
strength but of its moral force. A small clique of outcasts from the East Side of New
York has attempted this, with what success we all know. Because a disreputable alien,
Leon Bronstein, the man who now calls himself Trotzky‹can inaugurate a reign of terror
from his throne room in the Kremlin, because this lowest of all types known to New
York can sleep in the Czar's bed, while hundreds of thousands in Russia are without
food or shelter, should Americans be swayed by such doctrines?
Such a question, it would seem, should receive but one answer from America.
My information showed that communism in this country was an organization of
thousands of aliens who were direct allies of Trotzky. Aliens of the same misshapen
caste of mind and indecencies of character, and it showed that they were making the
same glittering promises of lawlessness, of criminal autocracy to Americans, that they
had made to the Russian peasants. How the Department of Justice discovered upwards
of 60,000 of these organized agitators of the Trotzky doctrine in the United States is the
confidential information upon which the Government is now sweeping the nation clean
of such alien filth....
WILL DEPORTATION CHECK BOLSHEVISM?
Behind, and underneath, my own determination to drive from our midst the agents of
Bolshevism with increasing vigor and with greater speed, until there are no more of
them left among us, so long as I have the responsible duty of that task, I have
discovered the hysterical methods of these revolutionary humans with increasing
amazement and suspicion. In the confused information that sometimes reaches the
people they are compelled to ask questions which involve the reasons for my acts
against the "Reds." I have been asked, for instance, to what extent deportation will
check radicalism in this country. Why not ask what will become of the United
States Government if these alien radicals are permitted to carry out the principles of the
Communist Party as embodied in its so-called laws, aims and regulations?
50
There wouldn't be any such thing left. In place of the United States Government we
should have the horror and terrorism of bolsheviki tyranny such as is destroying Russia
now. Every scrap of radical literature demands the overthrow of our existing
government. All of it demands obedience to the instincts of criminal minds, that is, to
the lower appetites, material and moral. The whole purpose of communism appears to
be a mass formation of the criminals of the world to overthrow the decencies of private
life, to usurp property that they have not earned, to disrupt the present order of life
regardless of health, sex or religious rights. By a literature that promises the wildest
dreams of such low aspirations, that can occur to only the criminal minds, communism
distorts our social law....
It has been inferred by the "Reds" that the United States Government, by arresting and
deporting them, is returning to the autocracy of Czardom, adopting the system that
created the severity of Siberian banishment. My reply to such charges is that in our
determination to maintain our government we are treating our alien enemies with
extreme consideration. To deny them the privilege of remaining in a country which they
have openly deplored as an unenlightened community, unfit for those who prefer the
privileges of Bolshevism, should be no hardship. It strikes me as an odd form of
reasoning that these Russian Bolsheviks who extol the Bolshevik rule should be so
unwilling to return to Russia. The nationality of most of the alien "Reds" is Russian
and German. There is almost no other nationality represented among them.
It has been impossible in so short a space to review the entire menace of the internal
revolution in this country as I know it, but this may serve to arouse the American citizen
to its reality, its danger, and the great need of united effort to stamp it out, under our
feet, if needs be. It is being done. The Department of Justice will pursue the attack of
these "Reds" upon the Government of the United States with vigilance, and no alien,
advocating the overthrow of existing law and order in this country, shall escape arrest
and prompt deportation.
It is my belief that while they have stirred discontent in our midst, while they have
caused irritating strikes, and while they have infected our social ideas with the disease
of their own minds and their unclean morals we can get rid of them! and not until we
have done so shall we have removed the menace of Bolshevism for good.
51
Palmer Raids in New England
The following quotations are taken from the lengthy opinion of a federal district court
judge in Boston in a case challenging the deportations. The full case can be found at
Colyer, et. al. v. Skeffington, 265 F.17 (D. Mass. 1920).
I. Instructions from Bureau of Investigation in Washington, D.C.
―On December 17, 1919, Frank Burke, Chief of the Bureau of Investigation of the
Department of Justice in Washington, sent the following letter to George Kelleher, head
of the local bureau in Boston:
"Department of Justice, Bureau of Investigation.
"Washington, December 27, 1919.
"Strictly Confidential.
"Geo. E. Kelleher, Esq., Box 3185, Boston, Mass. -- Dear Sir: I have already
transmitted to you two briefs prepared in this department upon the Communist Party of
America and the Communist Labor Party with instructions that these briefs be carefully
examined and studied for the purpose of familiarizing yourself and the agents under
your direction with the principles and tactics of these two respective organizations.
"You have submitted to me affidavits upon various individuals connected with these
respective organizations, stating that these persons are aliens and members of the
organizations referred to. I have transmitted to the Commissioner General of
Immigration the affidavits submitted by you with the request that warrants of arrest be
issued at once. This action is now being taken by the Bureau of Immigration and
warrants of arrest are being prepared and will shortly be forwarded to the immigration
inspector of your district.
"Briefly the arrangements which have been made are that the warrants will be
forwarded to the immigration inspector who will at once communicate with you and
advise you of the names of the persons for whom he has received warrants. You should
then place under surveillance, where practicable, the persons mentioned, and at the
appointed time you will be advised by me by wire when to take into custody all persons
for whom warrants have been issued.
"At the time of the apprehension of these persons every effort should be made by you to
definitely establish the fact that the persons arrested are members of either the
Communist Party of America or the Communist Labor Party. I have been reliably
informed that instructions have been issued from the headquarters of each of these
organizations to their members that they are to refuse to answer any questions but to
them by any federal officers, and are to destroy all evidence of membership or
affiliation with their respective organizations. It is therefore of the utmost importance
52
that you at once make every effort to ascertain the location of all of the books and
records of these organizations in your territory and that the same be secured at the time
of the arrests. As soon as the subjects are apprehended, you should endeavor to obtain
from them, if possible, admissions that they are members of either of these parties,
together with any statement concerning their citizenship status. I cannot impress upon
you too strongly the necessity of obtaining documentary evidence proving membership.
"Particular efforts should be made to apprehend all of the officers of either of these two
parties if they are aliens; the residences of such officers should be searched in every
instance for literature, membership cards, records, and correspondence. The meeting
rooms should be thoroughly searched and an effort made to locate the charter of the
Communist Party of America or the Communist Labor Party, under which the local
organization operates, as well as the membership and financial records, which, if not
found in the meeting rooms of the organization, will probably be found in the homes of
the recording and financial secretaries, respectively. All literature, books, papers, and
anything hanging on the walls should be gathered up; the ceilings and partitions should
be sounded for hiding places. After obtaining any documentary evidence, the same
should be wrapped in packages and marked thereon, the location of the place, and the
name of the persons obtaining the evidence, and the contents of each package.
"Violence towards any aliens should be scrupulously avoided. Immediately upon
apprehending an alien, he should be thoroughly searched. If found in groups in meeting
rooms, they should be lined up against the wall and there searched; particular effort
being given to finding the membership book, in which connection the search of the
pockets will not be sufficient. In no instance should money or other valuables be taken
from the aliens. All documentary evidence taken from an alien should be placed in an
individual envelope, provided for the purpose, which envelope should be marked
showing the contents contained in the same, whether they were found in the possession
of the alien or in his room, and if in the latter the address of the house should be given
as well as the name of the alien and the officer who obtained the evidence. A duplicate
record should be kept of all evidence thus obtained. At the time of the transfer of the
alien to the immigration inspector, you should also turn over to the immigration
inspector the original evidence obtained in the particular case, plainly marked so that
there may be no complaint by the immigration officers as to the manner in which
evidence has been collected by the agents of this bureau.
"I have made mention above that the meeting places and residences of the members
should be thoroughly searched. I leave it entirely to your discretion as to the method by
which you should gain access to such places. If, due to the local conditions in your
territory, you find that it is absolutely necessary for you to obtain a search warrant for
such premises, you should communicate with the local authorities a few hours before
the time for the arrests is set and request a warrant to search the premises.
"Under no conditions are you to take into your confidence the local police authorities or
the state authorities prior to the making of the arrests. It is not the intention nor the
desire of this office that American citizens, members of the two organizations, be
53
arrested at this time. If, however, there are taken into custody any American citizens
through error, and who are members of the Communist Party of America or the
Communist Labor Party, you should immediately refer their cases to the local
authorities.
"It may be necessary, in order to successfully make the arrests, that you obtain the
assistance of the local authorities at the time of the arrests. This action should not be
taken, unless it is absolutely necessary; but I well appreciate that where a large number
of arrests are to be made it may be impossible for the same to be made by special agents
of this department, in which event you are authorized to request the assistance of the
local police authorities. Such assistance should not be requested until a few hours before
the time set for the arrests, in order that no 'leak' may occur. It is to be distinctly
understood that the arrests made are being made under the direction and supervision of
the Department of Justice.
"For your own personal information, I have to advise you that the tentative date fixed
for the arrests of the Communists is Friday evening, January 2, 1920. This date may be
changed, due to the fact that all of the immigration warrants may not be issued by that
time. You will, however, be advised by telegraph as to the exact date and hour when the
arrests are to be made. If possible, you should arrange with your under-cover informants
to have meetings of the Communist Party and Communist Labor Party held on the night
set. I have been informed by some of the bureau officers that such arrangements will be
made. This, of course, would facilitate the making of the arrests.
"On the evening of the arrests this office will be open the entire night, and I desire that
you communicate by long distance to Mr. Hoover any matters of vital importance or
interest which may arise during the course of the arrests. You will possibly be given
from seven (7) o'clock in the evening until seven (7) o'clock in the morning to conclude
the arrests and examinations. As pointed out previously, the grounds for deportation in
these cases will be based solely upon membership in the Communist Party of America
or the Communist Labor Party and for that reason it will not be necessary for you to go
in detail into the particular activities of the persons apprehended. It is, however,
desirable that wherever possible you should obtain additional evidence upon the
individuals, particularly those who are leaders and officers in the local organizations.
The immigration inspector will be under instructions to co-operate with you fully, and I
likewise desire that you co-operate in the same manner with the immigration inspector
at the time of the arrests, as well as following the arrests. At the hearings before the
immigration inspector you should render any and all reasonable assistance to the
immigration authorities, both in the way of offering your services to them and the
services of any of your stenographic force. It is of the utmost necessity that these cases
be expedited and disposed of at the earliest possible moment and for that reason
stenographic assistance and any assistance necessary should be rendered by you to the
immigration inspectors. An excellent spirit of cooperation exists between the
Commissioner General of Immigration and this department in Washington and I desire
that the same spirit of co-operation between the field officers of this bureau and the
field officers of the Bureau of Immigration also exist.
54
"I desire that the morning following the arrests you should forward to this office by
special delivery, marked for the 'Attention of Mr. Hoover's complete list of the names of
the persons arrested, with an indication of residence, or organization to which they
belong, and whether or not they were included in the original list of warrants. In cases
where arrests are made of persons not covered by warrants, you should at once request
the local immigration authorities for warrants in all such cases and you should also
communicate with this office at the same time. I desire also that the morning following
the arrests that you communicate in detail by telegram, 'Attention of Mr. Hoover,' the
results of the arrests made, giving the total number of persons of each organization
taken into custody, together with a statement of any interesting evidence secured.
"The above cover the general instructions to be followed in these arrests and the same
will be supplemented by telegraphic instructions at the proper time.
"Very truly yours,
Frank Burke,
"Assistant Director and Chief."
II. Instructions from Commissioner of Immigration in Washington, D.C.
This document is to be read in connection with another document issued two days later
by Caminetti, Commissioner General of Immigration, to the Commissioner of
Immigration at Boston:
"Strictly Confidential. * * *
"Commissioner of Immigration, Boston, Mass.: The bureau is inclosing herewith 306
warrants of arrest covering aliens to be found in your jurisdiction. The names of these
aliens together with the places at which they are located, or the particular agent of the
Department of Justice through whom they can be located, are set forth in the
accompanying list. Prima facie evidence that each and every one of these aliens is a
member of the Communist Party of America or of the Communist Labor Party has been
secured by agents of the Department of Justice and placed before this department in
affidavit form, on the bases of which evidence these (and similar warrants for service
throughout the country generally) have issued. The Department of Justice has been
requested to instruct its field agents to provide the immigration officials in charge of the
jurisdiction where the alien is to be found with copies of these affidavits for the
completion of his files.
"For your confidential information, the Bureau has to state that the Department holds
the Communist Party of America to be an organization mere membership in which
brings an alien within the purview of the Act of October 16, 1918. Therefore the
warrants of arrest which have issued covering aliens of this and the similar (Communist
55
Labor Party) group contain charges pertaining to membership merely. It will
accordingly be of prime importance to secure and present, in form and manner to
constitute proper and usable evidence when the cases come before the Department for
final consideration, evidence of membership in either one or the other of these
organizations. However, individual tenets, beliefs and practices should not be
overlooked, and where evidence along these lines is uncovered (or along any other line
-- such as entry without inspection, etc.), it should be carefully and fully developed, the
alien to be placed on notice of the additional charge or charges in the manner stated in
paragraph (b) of subdivision 5 of rule 22. The local agents of the Department of Justice
will, it is believed, be in a position to furnish your examining officers with evidence of
membership in a considerable number of cases. The connection between such evidence
and the particular alien concerned should always be established on the record to the
fullest extent possible.
"The Communist Labor Party is, in all essential particulars in so far as the Act of
October 16, 1918, is concerned, identical with the Communist Party of America.
Evidence on both organizations, in the shape of official manifestos, copies of platforms,
programs, etc., will be furnished for the enlightenment of the officers who will conduct
the examinations as soon as it can be prepared. Pertinent extracts from these will be
properly read into the minutes of the hearings, when accorded; this, of course, in the
presence of the alien, who should be appropriately questioned with respect thereto.
"All agents of the Department of Justice have been definitely and specifically instructed
to co-operate with the officials of the immigration service from the outset to the final
conclusion of these cases, and to afford the immigration officers every facility which
they may possess to the proper, prompt, efficient, and successful handling of these
cases, this even to the extent of loaning stenographic help where required. The
courteous, full, and hearty co-operation of all officials of the immigration service with
the Department of Justice agents is required in this common service, and should be
given without stint. The success of the extensive movement which is being inaugurated
in this respect hinges on this.
"For your personal information and for the personal information only of those who
must plan with you (for under no consideration must a 'leak' occur due to any officer of
this service), you are advised that the Department of Justice is arranging (and has so
advised its appropriate field officers) to themselves accomplish the arrest of the aliens
covered in the warrants which have issued on the night of January 2, 1920. The aliens
will be held on local charges and opportunity afforded that night and the following day
for service upon them of the administrative arrest warrants. Where bond, as prescribed
in the warrants, is not furnished, the alien will be held in custody -- in an immigration
station where available; otherwise, in jail or other appropriate place of detention. The
Department of Justice agents will assist in serving the warrants, perfecting detention
arrangements, provide you with such evidence as they may possess, etc. They may not
conduct the hearings prescribed by section 16, however, and such evidence as they may
offer, whether in the shape of sworn statements previously secured by them, or of some
other character, should be properly incorporated in the record in the usual manner, viz.
56
by reading to the alien during the course of the hearing and questioning him with
respect thereto.
"Not later than noon on the appointed day you should have a properly qualified officer
or officers (where more than one can be spared) of your jurisdiction report in person
armed with the warrants to be served, to the Department of Justice agent in charge of
the district where the alien, or group of aliens, is to be arrested. In the event of a change
of date for the general arrests you will be promptly wired to that effect. Under no
circumstances should an officer proceed in the matter of the arrests except in co-
operation with a Department of Justice representative. To do so would be to invite
disaster.
"In the event you find, after carefully considering the matter, that you have not
sufficient officers to serve the warrants in the various localities at the proper moment,
please immediately wire (or phone if practicable or advisable) the bureau, when an
endeavor will be made to meet the emergency by temporarily drawing upon a
neighboring district which may not have been called upon to handle a considerable
number of such cases.
"The bureau desires that it be promptly advised of the progress of these cases at all
stages. The general result of the efforts to serve the warrants and obtain custody of the
aliens, together with any other information of possible interest, should be telegraphed to
the bureau at the earliest possible moment. as soon as it can be done, a list showing the
aliens arrested should be prepared and mailed to it, under special delivery stamp.
Additional warrants, where the necessary prima facie showing is made, may be applied
for telegraphically or by mail, as the circumstances may seem to warrant, the procedure
outlined in the bureau's general telegram of November 10, last, to control.
"The above cover the general instructions to govern the immigration officers in serving
the warrants and conducting the hearings in these cases. They will be supplemented,
telegraphically or by letter as occasion may seem to require, at the proper time.
"Respectfully, [Signed] A. Caminetti, Commissioner General.
"NOTE. -- Please wire the bureau immediately upon receipt of the warrants, in order
that it may know that all is in readiness.
"Publicity must be avoided."
III. Instructions to local agents conducting the raids
Kelleher, the head of the local bureau of investigation, summarized these instructions
for his agents in two sets of overlapping instructions.
"Instructions to Agents.
57
"1. Each person named in the warrant shall be taken into custody.
"2. Upon taking person into custody try to obtain all documentary evidence possible to
establish membership in the Communist Party, including membership cards, books,
papers, correspondence, etc.
"3. Also try to secure charters, meeting minutes, membership books, due books,
membership correspondence, etc., in possession of such person, which may lead to
further investigations of members not yet known.
"4. All such evidence secured, as above, to be properly marked and sealed as belonging
to such person, with name of arrestee, place where secured, date secured, and by whom
secured marked plainly on same.
"5. Person or persons taken into custody not to be permitted to communicate with any
outside person until after examination by this office and until permission is given by this
office.
"6. Upon making arrest, person in custody to be brought to the place designated by this
office for a preliminary examination.
"7. Preliminary examination to be made by agent making arrest on forms provided for
that purpose by this office. This form to be followed closely and filled out in detail. The
form then to be read to person in custody for him to sign and swear to. If he refuses to
swear and sign to same, then agent, in presence of one witness to examination, to sign
and swear to same and to have witness do the same.
"8. If a person claims American citizenship, he must produce documentary evidence of
same. If native-born, through birth records. If naturalized, through producing for agent
copy of naturalization papers. Be sure that these papers are final papers, containing
words 'and is hereby admitted to become a citizen of the United States.'
"9. In case of any uncertainty as to citizenship or noncitizenship of persons taken into
custody, or for any other reason, consult the office.
"10. Absolutely no publicity or information to be given by an agent. All such requests
for information to be referred to division superintendent. Also request observance above
by assisting officers."
"1. At time of apprehension, every effort must be made to establish definitely the fact
that one arrested is a member of either the Communist Party of America or Communist
Labor Party.
"2. It is of utmost importance to make effort to ascertain location of all books and
records of these organizations, and that same be secured at time of arrest.
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"3. Upon making arrests, endeavor to secure admissions as to membership in
Communist and Communist Labor Parties, together with any possible documentary
proof.
"4. Endeavor apprehend officers of either party if aliens, searching residences for
literature, membership cards, records and correspondence.
"5. Search meeting rooms and endeavor to locate charters of Communist or Communist
Labor Parties, as well as membership and financial records, which, however, may be
found at homes of recording and financial secretaries. Literature, books, papers and
anything on the walls should be gathered up, and ceilings and partitions sounded for
hiding places. Wrap anything taken and mark the location of place, names of persons
obtaining evidence, and contents of each.
"6. Upon apprehension, aliens should be searched thoroughly; if found in groups in
meeting rooms, line them up against the wall and there search them. Take anything
which tends to establish connection with either Communist or Communist Labor
Parties; in other words, only such material referring to these parties, and nothing
distinctly personal, such as money and other valuables. Mark envelopes showing
contents; whether found in possession of alien or in his room, with address as well as
names of those obtaining evidence. Duplicate record of all this should be kept; original
evidence obtained in the cases to be turned over to the immigration officers.
"7. Only aliens should be arrested; if American citizens are taken by mistake, their cases
should be immediately referred to the local authorities.
"8. Arrest of members covered by warrants to be made Friday at 9 p.m. Only aliens, and
connected with Communist and Communist Labor Parties; make preliminary
examination as per office memorandum.
"NOTE. -- These instructions are extremely confidential, are issued only for the
guidance of authorized agents of this office, are charged to such agents and must be
returned to this office upon completion of assignment.
IV. Implementation
―Thus equipped with explicit written instructions from the Department of Justice in
Washington, the local Bureau of Investigation made arrangements with the police forces
in the cities and towns in which the alleged Communists were for the arrests on the
night of January 2, 1920. The officials, both of the Department of Justice and of the
Department of Labor, described these proceedings, properly enough, as a "raid" and as
"catching the Communists in the net." The word "raid" seems appropriate, and will
hereafter be used in this report.
‖It was arranged to have at what were called "concentration points" -- generally a police
station -- an inspector of the Labor Department; in some cases, apparently having
59
possession of the warrants intended for service in that neighborhood; in other cases,
apparently not. It is difficult from the evidence to ascertain what function, if any, was
actually performed by these inspectors of the Labor Department. The arrests were in
fact made by the representatives of the Department of Justice, assisted by the local
police authorities, all of whom acted under the direction of the agents of the Department
of Justice. The raids were made on the evening of January 2, 1920, in the following
cities and towns: Boston, Chelsea, Brockton, Bridgewater, Norwood, Worcester,
Springfield, Chicope, Holyoke, Gardner, Fitchburg, Lowell, Lawrence, Haverhill, all in
Massachusetts; Nashua, Manchester, Derry, Portsmouth, Claremont, Lincoln, all in
New Hampshire. In some cities several halls were raided. In most communities, homes
were invaded.
‖Kelleher says that he had operating, practically under his control, for this raid, from
300 to 500 men. This may fairly be assumed to be a moderate estimate. Most of these
were agents of the Department of Justice and policemen of the various cities and towns.
The plan was to make up a list of the persons intended to be arrested in a particular
community; for the police and Department of Justice agents thereupon, generally
without warrants, to go about to the halls or homes where these people were, arrest
them, and bring them to the concentration point -- commonly a police station. When
halls were raided, the occupants were, as required by the instructions, lined up against
the wall and searched. Many citizens were gathered into the net in this fashion, and
brought to the various police stations. At the concentration points the sifting process
went on during the night. Blanks for questionnaires had been prepared, answers to
which were sought and generally obtained from the arrested persons. [Copy of
questionnaire begins on next page]
‖Assistant Superintendent West of the Boston Bureau of Investigation estimates that the
total number of persons actually arrested on this raid was approximately 600. This also
must be taken to be a moderate estimate. The circumstances under which the raid was
carried on make it impossible for him or any other person to know with any
approximate accuracy the number of persons arrested. Weighing his evidence in
connection with the other testimony adduced before me, I am convinced that a much
larger number of people was arrested -- probably from 800 to 1,200.
‖Much credible evidence, as, for instance, that from the witness Liberman, bears out
this estimate. Liberman testified that, at the close of a publicly advertised mass meeting
held at the Finnish Hall in Mulberry street, Worcester, plain clothes agents held up the
entire audience of about 200 and asked each one whether he was a citizen or not; that
they held those who answered that they were not citizens, taking about 100 to the jail;
later during the night all but 16 were released after being booked and answering the
typical questionnaire. Steiner's and Ryder's evidence, post, points to the same
conclusion.
‖The evidence as to the exact number of warrants then in the possession of the agents of
the Department of Justice or the inspectors of the Bureau of Labor is somewhat
confusing. Apparently, however, 463 warrants had been received in Boston, dated
60
December 29, 1919. But, assuming that this number of warrants was in Boston, over
100 of them could not have been served; for the evidence is explicit that out of the 440
persons arrested and taken to Deer Island warrants for about 100 were not at that time
outstanding. For persons thus taken and held, telegraphic warrants were applied for and
in most cases subsequently received. These people (100 or thereabouts) were seized on
the theory that, although warrants had not then been received, there was evidence that
they were alien members of the Communist or Communist Labor party, and were
therefore, under the instructions, to be held and warrants thereafter obtained.
‖After the sifting process at the various concentration points, at which at least one-third
to one-half of the total number of persons arrested were discharged after various periods
of detention in cells (from a few hours to two or three days), about 440 persons were
transported to Deer Island and there locked in cells. A considerable number of citizens
arrested were discharged; the evidence is not clear as to whether more than one citizen
was actually taken to Deer Island and there imprisoned in a cell.
. . . It was under such terrorizing conditions as these that these aliens were subjected to
questionnaires, subsequently used as, and generally constituting an important part of,
the evidence adduced against them before the immigration inspectors. Pains were taken
to give spectacular publicity to the raid, and to make it appear that there was great and
imminent public danger, against which these activities of the Department of Justice
were directed. The arrested aliens, in most instances perfectly quiet and harmless
working people, many of them not long ago Russian peasants, were handcuffed in pairs,
and then, for the purposes of transfer on trains and through the streets of Boston,
chained together. The Northern New Hampshire contingent were first concentrated in
jail at Concord and then brought to Boston in a special car, thus handcuffed and chained
together. On detraining at the North Station, the handcuffed and chained aliens were
exposed to newspaper photographers and again thus exposed at the wharf where they
took the boat for Deer Island. The Department of Justice agents in charge of the arrested
aliens appear to have taken pains to have them thus exposed to public photographing.
Private rooms were searched in omnibus fashion; trunks, bureaus, suit cases, and boxes
broken open; books and papers seized. I doubt whether a single search warrant was
obtained or applied for. . . It is of some significance that Congress has never armed the
Department of Justice with broad powers for the use of search warrants. The only
search warrant statute of present significance is found in Espionage Act June 15, 1917.
This statute carefully and specifically limits, as our Constitution requires, the use of
search warrants. On the doctrine of "inclusio unius exclusio alterius," it prohibits the use
of search warrants in cases like the present.
V. Questionnaire
Name, Age, Married, Address, (street), (city).
Where born? (city) (country) date.
Arrival in U.S.? (port) (date) (vessel).
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Naturalized? (place) (court) (date).
Declarant? (place) (date)
Where employed? (company) (address).
Ever arrested? (where) (date) (cause).
Are you a member of the Communist Party?
If so, to what local, branch, or organization?
When did you become a member?
Have you a membership card?
Do you hold any office in the Communist Party? Office?
Do you contribute financially to the support of the party?
Do you attend the membership meetings of the party?
Do you read its papers and publications? If so, which?
Are you affiliated with any other organizations? Which?
Were you a member of the Socialist Party?
Papers, correspondence, etc., found in possession of above by agent:
I, the undersigned, not a citizen of the United States, on oath depose and say that I have
read the above questions and answers, or have had the same read and interpreted to me,
and state the same are true:
(Signature of Alien)
Above questions and answers noted by
Witness:
VI. Testimony concerning raid in Brockton
Steiner is a clerk, 35 years of age, a citizen born in Manchester, N.H., and was arrested
in No. 885 Washington street, Boston, on the evening of January 2, 1920, where he was
in attendance at a committee meeting, there being no public meeting at that hall that
night. He describes what occurred as follows:
"The committee members were not all there; so some of us sat down in one of the rear
rooms to wait. We were talking, when about 9 o'clock three men came in through the
back door, having guns in their hands, and about the same time the front door was
thrown open and we saw some of these men there. The men in charge of the raiding
party ordered those in the back room brought into the front room, and we were herded
up against one side of the room with commands to hold up our hands and to get over
there. We held up our hands until a preliminary search for weapons had been made.
After that search had been made we were searched; I might mention this, incidentally,
that while we were being herded up against the wall one of the men in the room fainted.
After the preliminary search for weapons had been made we were searched for other
evidence which we might have on our persons, which was placed in envelopes with our
names marked on them as described by various witnesses. We were then taken down
62
stairs and crowded into vans."
No questions were asked as to whether those arrested were American citizens. "They
simply went ahead and proceeded to do these things. We were jammed into these vans
and taken to Station 4. At Station 4 we were lined up in front of the desk and booked."
The men who stood them up against the wall and searched them did not say whom they
represented. "As I recall it, they were all in civilian clothes. I did not see a man in
uniform until we got down to the street, and then we had to pass through a double row
of uniformed officers." They were shown no authority whatever for their arrests.
"After being booked we were taken into one of the available rooms at Station 4 and
brought out one at a time, examined by Department of Justice officers in accordance
with the questionnaire that has been spoken of here."
This examination took possibly until after midnight. In the meantime others that had
been apprehended at the same place were brought in, perhaps a dozen or 15, some of
them American citizens. About 27 in all were taken at 885 Washington street. The
witness saw no warrants of arrest anywhere that night, nor had seen any up to the time
of his testimony.
Describing the later occurrences, the witness continued:
"After answering the questionnaire and signing it, which most of us agreed to do, we
were taken down stairs and assigned to cells. I with ten others was assigned to one cell.
I remained in that cell until the afternoon of the following day, which was Saturday,
about half past 4. Four names were called out, and I was one of the four. We were taken
up stairs, brought before the clerk or captain or sergeant in charge -- I don't know just
what he was -- and we were asked as to our names. We were then handed our property.
I didn't know just what that meant, so that I inquired if that meant that we were released,
and I was told, 'Yes.' I went home. I didn't hear anything further from the Department of
Justice until Monday night. On Monday night an inspector came to my home. * * * He
came in and asked me if I was Henry G. Steiner, and I told him that I was. He said that
he had received orders to come and get me and to make a search of the house. I said to
him, 'I don't know who you are; have you any credentials or warrant?' He displayed his
badge and said that was all the warrant he required. * * * It was a gilt badge, and I think
it said 'Department of Justice' on it, as near as I could make out. He then proceeded to
search; that is, he did ask me where I kept my books, literature of various kinds. I told
him he would find everything right out in plain sight in the bookcase. He went to the
bookcase and proceeded to search that for anything he thought he could use. He went to
a table where I had books and papers of various kinds and went through them. He went
up to another rack, another part of the room, and he took what he wanted from that. He
pulled open several drawers, but he found they contained other than books or
pamphlets, and he finally inquired if that was all I had. I said, 'You will find everything
that I have got right there.'
"Q. Did he show you any search warrant? A. He did not.
63
"Q. Did he ask your permission to look at the property? A. He did not. In fact while I
don't know as I explicitly told him not to search, but I did ask him for his credentials or
search warrant, and he simply stated that the badge was all the search warrant that he
required. I did not argue the matter with him further. He then took me down to the
Department of Justice office --
"Q. Did he take anything with him, any of your books? A. Oh, yes; they were all
wrapped up in a robe that they had in the auto, about as much as he could carry. He took
me down to the Department of Justice offices. We got down there about half past 11, I
should judge.
"The Court: At night?
"The witness: At night. We found that everybody had gone home except the cleaners,
the porters, so that he left me there a few minutes, and he came back, and said he had
found instructions that he did not require me any further that night. So that I went home.
The next day they came to my place of business. He again took me to the Department of
Justice. * * * The same inspector that had come to the house, came to the offices and
told me that I was wanted down at Water street.
"Q. This is at your place of business? A. At my place of business. I went there, and I
saw a gentleman that I think was Mr. West, and he said that some hitch had developed
about my citizenship; that is, they were unable to verify my birth record. So I suggested
that possibly they had it recorded under the wrong name; that is, they did not spell the
name correctly. And he got Manchester on the long distance and found that that was
correct. He then told me that he did not require me any further, and I suggested that he
return to me the books and pamphlets that they had taken the previous night, which he
said would be done with the exception of those papers required for evidence. A few
days later all the books and pamphlets were returned, but certain papers belonging to
me have been kept by them. I have never seen them since.
"Q. Is that all? A. That is all."
On cross-examination Steiner said that at No. 885 Washington street was the
headquarters of the Communist Party, and he had gone there that night to attend a
committee meeting that never took place; that at one time he was the business manager
of the "Revolutionary Age," edited by Fraina; that the meeting he was attending that
night was a defense committee meeting; that he was absolutely certain that some of the
men who came in at the time of the raid had guns in their hands.
In fairness, perhaps, it should be stated that Robert M. Volkenburg, an agent of the
Department of Justice called by the government, testified that he was in charge of the
raid at 885 Washington street, and gave strict instructions that no guns should be drawn,
and was positive that none were exhibited. Without imputing mendacity, I find Steiner's
evidence the more credible.
64
Inspector Ryder's account of the raid in Brockton shows practically the same methods.
He testifies:
That he was assigned to Brockton; that he had, "roughly, about ten" warrants; "I don't
remember of identifying anybody with those warrants;" that he was in the city marshal's
office.
"Q. About how many people did they bring before you for identification?
A. Oh, they were being brought in all night by the police. Nearer 100 than 50, that night
and the next day."
"Q. But that night you did not serve a single warrant? A. No.
"Q. Were they all released? A. No.; 18 or 19 were brought to Boston the next day. For
these or most of them warrants were wired for.
"Q. And were they examined by the Department of Justice agent on the questionnaire?
A. Yes, sir.
"Q. And those who answered that they were members of the Communist Party, were
those the ones for whose arrest you applied for warrants? A. Well, I did not take any
direct part in that examination. I knew they were examining the aliens. Once in a while I
would stroll over and I might butt in and say something. I did not think I had any
connection with that.
"Q. Of the men you brought to Boston for whom you applied for warrants, how many of
them had answered and signed questionnaires properly? A. Oh, I believe there were
questionnaires for all those who were brought in. * * *
"Q. (by the Court). Where did they pick up these people around Brockton? In the halls
or in their homes? A. In their homes. I might explain that very simply. The financial
secretary having been brought in with his books and membership cards of the
Communist Party of America, there was found to be about 200 on his register. So that
they went looking up some of those people. And the Communist card was apparently
good evidence against them to apply for a warrant at least.
"Q. Well, you said they were doing it all night and a part of the next day? A. Yes, sir;
the police.
"Q. Did they take these people out of bed and bring them to the police station during the
night? A. Why, there was a group of police officials assigned to assist the Department
of Justice, and they knew the territory and they were sent out.
"Q. Well, that went on in the evening and all through the late hours of the morning? A.
Yes; your honor.
65
"Q. You stayed there at the station to see if you could fit any of these people to the
warrants you had? A. Yes, sir.
"Q. And you did not find a single fit in your case? A. No; I was up stairs and they were
brought in and detained down stairs, and a great many would be brought in without my
knowledge.
"Q. What did they do with them? Locked them up? A. After a few moments; then each
one would be brought up stairs and questioned and let go in many cases.
"Q. In other cases what did they do? A. Held them there.
"Q. Locked them up? A. Yes, your honor.
"Q. About how many did they take and lock up in that fashion? A. Well, not many more
than the 18 or 19 that came to Boston.
"Q. Well, does that mean 25 or 30 in all, do you think? A. I don't believe there were
over 25 locked up.
"Q. Did you have any search warrants down there? A. Not to my knowledge.
"Q. Well, you were in a position where you would have heard of it, if any application
had been made for search warrants? A. I think so. I would have heard of it.
"Q. And they went into these homes, took the literature, and whatever they could find
that they thought might be evidence, and brought that with the alien to the police
station? A. Yes, your honor; the police.
"Q. Well, how many of the Department of Justice agents were down there? A. Two. But
they were working about all night in the station. They were interrogating these men.
"Q. You sent the police out to get them and bring them in? A. Yes, your honor."
VII. Treatment of women
There were also incidents of the arrests of women under conditions involving great
hardship. For instance, the witness Mrs. Stanislas Vasiliewska, the mother of three
children, aged 13, 10, and 8, was arrested in a hall in Chelsea, taken in the police patrol
wagon with her eldest girl to the police station, and both put with another woman into
one cell. About midnight they took her child and sent her home alone to a remote part of
the city. Mrs. Vasiliewska was taken the next day to the wharf, where, with Mrs.
Colyer, she was confined for about 6 hours in a dirty toilet room. She was then taken to
Deer Island, where she was kept 33 days.
66
The witness Minnie Federman was arrested at her home at 6 o'clock in the morning.
Several men, showing her no warrant, entered her room where she was in bed. She was
told to get out of bed and dress, which she did in a closet. Then she was taken in a
police wagon to the police station after they had searched her premises, apparently for
I.W.W. literature. When they found that she was a naturalized citizen, she was allowed
to go.
In Nashua a hall was raided and about 13 women taken, 6 or 7 of whom were released
at the police station; 5 of them were kept from Friday night to Saturday afternoon in one
cell, without a mattress.
VIII. Conditions of detention at Deer Island
At Deer Island the conditions were unfit and chaotic. No adequate preparations had
been made to receive and care for so large a number of people. Some of the steam pipes
were burst or disconnected. The place was cold; the weather was severe. The cells were
not properly equipped with sanitary appliances. There was no adequate number of
guards or officials to take a census of and properly care for so many. For several days
the arrested aliens were held practically incommunicado. There was dire confusion of
authority as between the immigration forces and the Department of Justice forces, and
the city officials who had charge of the prison. Most of this confusion and the resultant
hardship to the arrested aliens was probably unintentional; it is now material only as it
bears upon the question of due process of law, shortly to be discussed. Undoubtedly it
did have some additional terrorizing effect upon the aliens. Inevitably the atmosphere of
lawless disregard of the rights and feelings of these aliens as human beings affected,
consciously or unconsciously, the inspectors who shortly began at Deer Island the
hearings, the basis of the records involving the determination of their right to remain in
this country.
In the early days at Deer Island one alien committed suicide by throwing himself from
the fifth floor and dashing his brains out in the corridor below in the presence of other
horrified aliens. One was committed as insane; others were driven nearly, if not quite, to
the verge of insanity.
After many days of confusion, the aliens themselves, under the leadership of one or two
of the most intelligent and most conversant with English, constituted a committee, and
represented to Assistant Commissioner Sullivan, that, if given an opportunity, they
would themselves clean up the quarters and arrange for the orderly service of food and
the distribution of mail. This offer was wisely accepted, and thereupon the prisoners
created a government of their own, called, ironically, I suppose, "The Soviet Republic
of Deer Island." Through the assistance of this so-called Soviet government, conditions
orderly, tolerable, not inhumane, were created after perhaps 10 days or 2 weeks of filth,
confusion, and unnecessary suffering. It is not without significance that these aliens,
thus arrested under charges of conspiracy to overthrow our government by force and
violence, were, while under arrest, many of them illegally, found to be capable of
67
organizing amongst themselves, with the consent of and in amicable co-operation with
their keepers, an effective and democratic form of local government.
IX. Hearings
―The Department of Justice had gathered at Deer Island, nominally in the custody of the
Department of Labor, some 440 aliens. In order to carry out the plan of wholesale
deportation, it was then necessary that these aliens be given hearings before inspectors
of the Labor Department. It was recognized that legal hearings could not be conducted,
in form at any rate, by agents of the Department of Justice. Burke's long letter of
December 29, 1919, to Kelleher, expressly enjoined the agent of the Department of
Justice that --
"At the hearings before the immigration inspector you will render all reasonable
assistance to the immigration authorities both in the way of offering your services to
them and the services of any of your stenographic forces."
This was construed as requiring the Department of Justice agents to be present at the
hearings of the aliens before the immigration inspector, practically in many instances
undertaking to participate or even give direction to those hearings. These Department of
Justice agents were particularly active in producing and putting before the trial tribunal
documents and publications claimed to have been obtained under such circumstances as
to be evidence against the particular alien. Many of the records show that, after the
hearings were practically closed, the Department of Justice agents were given
opportunity to present further evidence and to express their opinions as to the
conclusion that ought to be reached by the trial inspector.
In dealing with these hearings, it is necessary to consider with care the extraordinary
circumstances surrounding the change of rule 22. Just prior to the initiation of this raid,
this rule read:
"At the beginning of the hearing under the warrant of arrest the alien shall be allowed to
inspect the warrant of arrest and all the evidence on which it was issued, and shall be
apprised that he may be represented by counsel."
Under date of December 31, 1919, Commissioner General Caminetti, two days after the
date of his confidential letter of instructions to the Boston Commissioner of
Immigration setting forth the plan of the proposed raid, issued a circular letter
modifying this rule.
"December 31, 1919.
"Commissioner of Immigration and Inspectors in Charge: By direction of the Acting
Secretary, rule 22, Immigration Rules, is hereby amended, effective immediately, to
read as follows:
68
"'Preferably at the beginning of the hearing under the warrant of arrest or at any rate as
soon as such hearing has proceeded sufficiently in the development of the facts to
protect the Government's interests, the alien shall be allowed to inspect the warrant of
arrest and all the evidence on which it was issued and shall be apprised that thereafter
he may be represented by counsel.'"
The practical result of this changed rule, it is to be observed, was to cut the alien off
from any representation by counsel, until the inspector, co-operating with or advised by
the agent of the Department of Justice, was of the opinion that the hearing had
proceeded "sufficiently in the development of the facts to protect the government's
interests." This left these aliens, many of them uneducated and seriously hampered by
their inability to understand English, or even the interpreters, many of whom were but
meagerly equipped with knowledge of the language and dialects used by these aliens,
entirely unprotected from the zealous attempts of the Department of Justice agents to
get from them some sort of apparent admission of membership in the Communist or
Communist Labor Party. It should not be overlooked that many of these aliens were
arrested in boarding houses or halls in which were found large quantities of literature
and pamphlets, the origin and ownership of which were necessarily largely matters of
guesswork. In cases of doubt, aliens, already frightened by the terroristic methods of
their arrest and detention, were, in the absence of counsel, easily led into some kind of
admission as to their ownership or knowledge of communistic or so-called seditious
literature.
The picture of a non-English-speaking Russian peasant arrested under circumstances
such as described above, held for days in jail, then for weeks in the city prison at Deer
Island, and then summoned for a so-called "trial" before an inspector, assisted by the
Department of Justice agent under stringent instructions emanating from the
Department of Justice in Washington to make every possible effort to obtain evidence
of the alien's membership in one of the proscribed parties, is not a picture of a sober,
dispassionate, "due process of law" attempt to ascertain and report the true facts.
The modification of the rule, by the authority of the Acting Secretary of Labor,
continued in force about a month, during which substantially all the hearings at Deer
Island were practically completed. But on January 28, 1920, the Secretary of Labor,
who is stated to have been absent because of illness on December 31, 1919, when the
change in the rule was made cutting off the right of the alien to have any real assistance
from counsel, by telegram (copy below) ordered the old rule restored:
"Jan. 28.
"Immigration Service, Boston, Mass.: By direction of secretary paragraph B subdivision
five rule twenty-two restored to form in which it existed previous to amendment
December thirtieth nineteen nineteen. In other words amendment of December thirtieth
nineteen nineteen should be disregarded from and after receipt this telegram.
Abercrombie."
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This amendment shows the clear purpose of the Secretary of Labor to have these aliens
properly treated, guarding their constitutional rights and insuring the Secretary, as the
final tribunal, in having before him, as the basis for the discharge of his important
duties, records representing at least a fair, dispassionate, and intelligent attempt to
ascertain and report the facts of controlling importance. But it must not be overlooked
that this restoration of the old rule came too late to protect the rights of the petitioners in
these cases. They had already been tried.
It is difficult to conceive a case in which the right of aliens to be represented by counsel
could be more vital. These particular aliens were charged with affiliation with political
or economic organizations with the purposes of which most of them had little or no
comprehension. As pointed out hereafter, the Communist and the Communist Labor
Parties were the result of an internal row or split in the old Socialist Party, and many of
the members of the Communist Party and the Communist Labor Party became such
automatically. In the minds of many of them there was no change but in name. They
supposed they had joined an organization or a political movement which to them
represented, dimly and obscurely, sympathy with the forces in Russia that had
overthrown the tyranny of the Czar from which many of them had sought escape by
emigrating to the United States. Deliberately to plan to cut these aliens off from the
advice and assistance of counsel until they were involved in apparent admissions that
they were members of or affiliated with an organization teaching the overthrow of this
government by force and violence, the practical equivalent of a charge of treason if
against citizens, is utterly inconsistent with every notion involved in the conception of
"due process of law."
. . . As the hearings before the immigration inspectors progressed, it became evident that
the preliminary investigations made before arrests, not, as contemplated by the rules of
the Department of Labor, by the experienced inspectors of that Department, but by
agents of the Bureau of Investigation of the Department of Justice, were wholly
inadequate and unreliable.
Although, as set forth above, the number of persons actually arrested was probably two
or three times the number taken or Deer Island (about 440), against the majority of these
thus detained the immigration inspectors found no evidence warranting detention. They
were therefore constrained to recommend the cancellation of the warrants or that the
aliens be discharged on their own recognizance, a proceeding which the statutes and
rules do not appear to contemplate, but which seems, on the basis of practical justice, to
have been adopted and used in the Department of Labor. The testimony of Inspector
Ryder as to his experience may be taken as fairly illustrative of the conditions found:
On April 8, 1920, he testified that he had heard at Deer Island 75 cases and had then
disposed of between 30 and 35; that of these 35 cases he estimated that in 25 he had
recommended a cancellation of warrants; that he had recommended deportation in only
4 to 7 cases out of the 30 to 35 disposed of; also that he had recommended release on
their own recognizance in from 30 to 40 cases, including most of the women; that these
recommendations were made after a preliminary hearing, generally with an agent of the
70
Department of Justice present.
The manifest result of this lack of evidence adequate on the government's own theory to
hold these aliens for deportation was to discredit the activities of the Department of
Justice that had promoted this spectacular raid and furnished to Acting Secretary of
Labor Abercrombie the evidence upon which the hundreds of warrants used in this
district had been issued by him. Accordingly, as the necessity for discharging the great
majority of those arrested became increasingly obvious, the pressure to make a record
adequate to hold those against whom any evidence whatever could be found increased.
As discharges increased, the chances of discharge of the aliens within the realm of
reasonable doubt decreased. As the number of aliens available for deportation
decreased, pressure upon the trial tribunals to resolve all doubts against those who
remained would naturally increase.
I note again that with the inspector at the hearing was an agent of the Department of
Justice that had initiated and carried on this great raid, and that the alien had no counsel
to represent him until the hearing was practically closed. Under such circumstances, it is
not to my mind conceivable that these immigration inspectors could do justice to these
ignorant, non-English-speaking, bewildered aliens.
. . . It would not be fruitful now to analyze and state in elaborate detail the numerous
complications and contradictions in the evidence concerning these aliens, brought out
before me and appearing in the records made before the inspectors which are exhibits
before me. But it is plainly not enough, as argued by the Assistant United States
Attorney, to find that an alien, particularly a non-English-speaking alien, in one part of
his testimony, either before the court or before the inspector, appeared to admit
membership in the Communist Party, assuming that such membership is otherwise held
to bring the alien within the purview of the Act of October 16, 1918. For illustration:
The alien Chaika, testifying before the court, through an interpreter, was asked on cross-
examination:
"Q. Are you a member of the Communist Party? A. I am.
"Q. When did you become a member of the Communist Party? A. In the month of
September."
This would seem to be conclusive. But after a considerable further cross-examination,
Chaika was asked by the Assistant United States Attorney:
"Q. How do you know that you are a member of the Communist Party? A. Because a
policeman showed me a membership book in the Communist Party; so I said 'Yes.'
"Q. When did you first learn that you were a member of the Communist Party? A. I
didn't know until the first meeting. When the policeman showed me the membership
book, he asked me whether that was my name, and I said 'Yes.' Then he said it was my
book, and said that book was a membership book in the Communist Party.
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"Q. Are you referring now to the hearing at Deer Island? A. The one given at Lincoln,
N.H., at the time of my arrest."
This evidence, if true, shows the Chaika never knew until the time of his arrest when
called upon to answer the questionnaire, that the club that he belonged to in the paper
mill plant had been admitted, in form at any rate, to affiliation with the Communist
party. The flat previous admission therefore goes for naught.
This evidence is typical of the confusion and doubt that arise when an attempt is made
to sift the truth out of the records made of the hearings of these bewildered, terrorized,
non-English-speaking aliens before the inspectors and out of their evidence before the
court.
Assuming for the purposes of the present point that the Secretary's construction and
application of the act to the Communist Party may be held to be correct, I accord with
what I understand now to be the view of the Department of Labor, that such
membership must be a real membership in or an actual affiliation with the proscribed
organization. I do not think that Congress meant to authorize the expulsion of aliens
who pass from one organization into another, supposing the change to be a mere change
of name, and that by assenting to membership in the new organization they had not
really changed their affiliations or political or economic activities. For illustration:
When, at meetings of a local of the Socialist Party, notice was given that the local had
been expelled or had seceded from the Socialist Party and would thereafter take the
name "Communist," and that signatures for membership in the new organization were
requisite, nothing more appearing, I could not hold that such new membership, thus
created, brings the new members within the purview of the act of Congress. Congress
could not have intended to authorize the wholesale deportation of aliens who,
accidentally, artificially, or unconsciously, in appearance only, are found to be members
of or affiliated with an organization of whose platform and purposes they have no real
knowledge.
This principle covers many -- perhaps most -- of these 9 aliens. Apart from the fact that
the records in their cases are grounded in unfair hearings and are very unreliable, it is
entirely clear that the membership or affiliation of most of these aliens was but artificial
and shadowy.
A summary of the evidence of a few of them will suffice to illustrate the basis of the
general finding that these records are grounded on proceedings unfair, lacking in due
process of law, and unreliable.
The petitioner Adam Musky testified, through an interpreter, that he was arrested at 7
o'clock on the morning of the 2d of January at his home, 87 Endicott street, Worcester,
Mass. Five or six men came into the house and began to look through the room, and
took everything they wanted, without asking his permission or showing any search
warrant or warrant for his arrest; that he was taken to the police station and kept 24
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hours, and afterwards questioned on the train. He was taken to Deer Island. He did not
understand English, and when examined at Deer Island he and the interpreter did not
understand each other. He spoke Russian, and did not know Lithuanian; that he had no
lawyer at the time of the hearing; that after the hearing he was told that he might have a
lawyer. The witness said that he joined the Socialist Party, and then went over to the
Communist Party when all the others became members of the Communist Party.
"How did you become a member of the Communist Party?" "I don't know. They said
they changed the name, and that's all I know."
That he was a member of the Socialist Party about 9 months and read the newspapers;
didn't read the Communist literature; didn't have time. All the difference he understood
between the Communist and the Socialist Parties was the difference in name; that he
never read the Program and the Manifesto of the Communist Party; did not remember
whether he ever read the Manifesto of the Socialist Party or not. He never thought that
by becoming a member of the Communist Party he was obligating himself to advocate
or seek the overthrow of the government of the United States by force or violence; that
he did not believe in overthrowing the government of the United States by force or
violence. He never had any idea that he was to participate in a bloody revolution in the
United States for the purpose of overthrowing the government; that nobody ever told
him about such ideas; that he never discussed force, violence, or bloodshed with
anybody.
In response to the court's suggestion to find out whether he or any of the other
Worcester people had any bombs or guns or dynamite, or other implements or devices
of that nature, the witness said he never saw any, never had any, or heard any discussion
about getting any such things; that he went to the people's village school in Russia and
attended evening school in America three evenings in all; that he reads and writes
Russian, but English "very poorly"; that he works in a shoeshop. On cross-examination
he said that at the time of his arrest he belonged to the Worcester Local Communists
and at one time was secretary of that local, but not at the time of his arrest.
Fred Chaika is one of several Russians taken at Lincoln, N.H., a little paper mill town in
the White Mountains. They had a clubroom furnished by the paper company.
Chaika testified, through an interpreter, that he was arrested in his house at 11 o'clock at
night by men who came in and began to search his room for Red books; that they
arrested him and handcuffed him, in spite of his protest that he had had a broken wrist.
No warrant of search or arrest was shown him. He was simply handcuffed, taken to the
clubroom, where there were about 14 more arrested people, and kept there until 6
o'clock in the morning; then, handcuffed in pairs, they were taken to the railroad station;
thence to Concord, and kept there in jail until Sunday morning; thence to Deer Island.
The warrant for his arrest was served on him after he was in jail at Concord. The record
of his hearing before the inspector shows that he testified that he became a member of
the Socialist Party in April, 1919; that he did not know whether he transferred to the
Communist Party or not; he might have read the constitution, buy forgot it. He denied
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being a member of or affiliated with any organization that entertained a belief in the
overthrow by violence of the government. He denied being opposed to organized
government. He was, however, willing to be deported, as it appears that he has a wife
and child in Russia.
Considering the record of his hearing with his evidence before me, it is clear that this
alien had no conception of being affiliated with any organization committed to the
overthrow of the government of the United States.
Koly Honchereoff, arrested in Portsmouth, N.H., had been in this country 8 years, and
testified, through an interpreter, that he could read and write English a little, but could
read and write Russian. He testified before the court that he never read or understood
the principles of either the Socialist or the Communist Party. He was a riveter in the
shipyard at Portsmouth.
Honchereoff was arrested about 11 o'clock at night in his home with a lot of others and
taken to the police station, where the usual questionnaire was presented to him. He
testified before the court explicitly that, when asked if he belonged to the Socialist
Party, he said, "No." Asked if he belonged to the Communist Party, he said, "No."
When asked if he belonged to some union, "Yes; I belong to a union three years." "I
said I belong to the union three years; he put it three years in the Communist Party." His
questionnaire, made subsequently a part of the record of his hearing, indicates that he
admitted that he became a member of the Communist Party on December 11, 1919, but
had not a membership card.
Before the court the witness testified that the interpreter did not speak Russian Well;
that the inspector showed him a list of names, but he denied that he was a member of
the Communist Party, or that he told the inspector that he was a member of the
Communist Party.
Anton Harbatuk was another of the Lincoln paper mill workers, who was arrested and
searched, as were Chaika and Serachuk. A membership book of this Russian branch
was introduced containing his name; also a record showing that this Russian club had
transferred to the Communist Party December 21, 1919. He testified that he did not read
the Program or constitution of the Communists, but paid dues of 60 cents a month; that
he joined the Communist Party because they were Russians and had been thrown out of
the Socialist Party. Being asked whether he had joined the Communist Party "because
the Socialist Party was not radical enough," he replied, "Why, I don't know. I don't
know what the meaning of the word 'radical' is." On this being explained to him, he
said:
"Why, I got nothing to do against the government, and I have never come to a thought
against the government of the United States, only my thoughts of the Russian
government."
Before the court he testified that he went to this club.
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"I had no other place to go to, and then I thought I ought to belong to some
organization." "What did they do at that club?" "They learned how to read and write;
also arithmetic. * * * It was a room furnished, belonging to the people who worked in
the paper mill." For it they paid "sixty cents a month."
Some of the money was used to buy books to teach the people to read English and
Russian.
Sedar Serachuk is another of the Lincoln paper mill employes arrested under conditions
such as Chaika described. When the agent of the Department of Justice began to search
his room, he said to them:
"If you want to arrest me, show me your warrant. He showed me his fist, and said, 'This
is your warrant,' and continued to search the room."
This alien testified, through an interpreter, that at his hearings before the inspector he
understood with difficulty; that at this hearing they showed him newspapers and
membership cards which were not his; that he had a membership card in the Socialist
Party, but did not have one in the Communist Party.
The record of his hearing before Inspector Ryder shows that he testified that he thought
the Communist Party and the Socialist Party were all the same; he had not read the
paper called "Communist"; and that when extracts and Manifestoes were read to him he
answered that "he never heard of it"; that he did not know anything about their being
samples of the teachings of the Communist Party. He believed in organized
government; he did not know that the teachings of the Communist Party were against
the United States government.
"I don't know what it was. A lot of fellows used to go, and so did I. I was approached to
buy bonds, and we all bought bonds;" that he knew he "was innocent."
But a card indicating that he had paid three months dues in the Communist Party was
apparently held by the inspector as enough to warrant of finding against this alien, and
he was ordered deported.
Frank Matchian, of Norwood, Mass., was born in Lithuania, Russia, and came to the
United States in 1912. He was arrested on the night of the 2d of January, 1920, at a hall
in Norwood, and taken to the police station, where his pockets were searched. The
typical questionnaire was submitted to him, which he signed; then he was taken to Deer
Island, where he was kept about 3 months. He was first shown a warrant at his hearing
at Deer Island, and was never shown a search warrant. They took letters and newspapers
from his room. He was a member of the Socialist Party from January, 1914, and never
applied for membership in the Communist Party, but said he became a member of the
Communist Party by the resolutions passed at the branch or local; that he did not see
any difference between Socialists and Communists, except the name; that he did not
75
read the Manifesto and Program of the Communist Party; he read some of the literature,
but did not understand some parts; that he had no idea that by becoming a member of
the Communist Party he was obligating himself to engage in force and violence for the
purpose of overthrowing the government of the United States; that he had no guns,
ammunition, bombs, or ideas about such things; that he was always against the use of
force and violence; that he expected the communistic state would come if the majority
of the people want Communism and put in the Communist Party. "The Communist
Party is a political party;" that it "comes by progress." He never heard any discussion of
burning, shooting, killing, bombing, or dynamiting; that in the Socialist local at
Norwood were 56 members, mostly speaking Lithuanian, laborers in the different mills
in Norwood; had had a Lithuanian hall since 1915; many of the men were married.
They met in this hall for society and benefit organizations; that there were six or seven
Lithuanian organizations around that hall, one of which was the Socialist Club; that all
he knew about Communism was that somebody said the Socialist Party became
Communists and he went along with the crowd.
On cross-examination, he testified that he was the manager of the Lithuanian hall; that
the literature received there was taken charge of by him and distributed to the members;
that he was an organizer for the Socialist Branch in 1918, and still held the position
after he became a Communist.
The record of Matchian's hearing before Inspector Ryder indicates that he paid his dues
in the Socialist Party up to November, 1919, at 40 cents a month; that this Socialist
Club had received a charter for membership in the Communist Party. When his
attention was directed to some of the denunciations of capitalism in the Communist
literature, he said that he could not "understand all that." Weighing fairly both his
evidence before the court and the record made by the inspector of immigration, it is
entirely clear that if, and in so far as, he was a Communist at all, it signified to him a
mere change of name, an automatic shifting of the old Socialist Club into a Communist
Club; that he had no conscious affiliation with any organization supposed by him to be
committed to any program of force or violence.
There are no sufficient differences in the cases of the rest of the 9 now grouped as to
warrant detailed statements of the evidence in their cases.
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86
EXECUTIVE ORDER 9066
Whereas, the successful prosecution of the war requires every possible protection
against espionage and against sabotage to national-defense material, national-defense
premises and national defense utilities . . .
Now therefore, by virtue of the authority vested in me as President of the United States,
and Commander in Chief of the Army and Navy, I hereby authorize and direct the
Secretary of War, and the Military Commanders whom he may from time to time
designate, whenever he or any designated Commander deems such action to be
necessary or desirable, to prescribe military areas in such places and of such extent as
he or the appropriate Military Commander may determine, from which any or all
persons may be excluded, and with respect to which, the right of any persons to enter,
remain in, or leave shall be subject to whatever restriction the Secretary of War or the
appropriate Military Commander may impose in his discretion.
The Secretary of War is hereby authorized to provide for residents of any such area who
are excluded there from, such transportation, food, shelter, and other accommodations
as may be necessary, in the judgment of the Secretary of War or the said Military
Commander, and until other arrangements are made, to accomplish the purpose of this
order. The designation of military areas in any region or locality shall supersede
designations of prohibited and restricted areas by the Attorney General under the
Proclamation of December 7 and 8, 1941, and shall supercede the responsibility and
authority of the Attorney General under the said Proclamations in respect of such
prohibited and restricted areas.
I hereby further authorize and direct the Secretary of War and the said Military
Commanders to take such other steps as he or the appropriate Military Commander
may deem advisable to enforce compliance with the restrictions applicable to each
military area herein above authorized to be designated, including the use of Federal
troops and other Federal Agencies, with authority to accept assistance of state and local
agencies.
I hereby further authorize and direct all Executive Departments, independent
establishments and other Federal Agencies, to assist the Secretary of War or the
said Military Commanders in carrying out this Executive Order, including the
furnishing of medical aid, hospitalization, food, clothing, transportation, use of
land, shelter, and other supplies, equipment, utilities, facilities and services.
This order shall not be construed as modifying or limiting in any way the authority
heretofore granted under Executive Order No. 8972, dated December 12, 1941, nor
shall it be construed as limiting or modifying the duty and responsibility of the Federal
Bureau of Investigation, with respect to the investigations of alleged acts of sabotage
or the duty and responsibility of the Attorney General and the Department of Justice
under the Proclamations of December 7 and 8, 1941, prescribing regulations for
87
the conduct and control of alien enemies, except as such duty and responsibility is
superseded by the designation of military areas hereunder.
Signed,
Franklin D. Roosevelt
The White House
February 19, 1942
88
Excerpt from Lt. Gen. J.L. DeWitt's letter of transmittal to the Chief of Staff, U.S.
Army, June 5, 1943, of his Final Report; Japanese Evacuation from the West Coast
1942.
1. I transmit herewith my final report on the evacuation of Japanese from the Pacific
Coast.
2. The evacuation was impelled by military necessity. The security of the Pacific Coast
continues to require the exclusion of Japanese from the area now prohibited to them and
will so continue as long as that military necessity exists. The surprise attack at Pearl
Harbor by the enemy crippled a major portion of the Pacific Fleet and exposed the West
Coast to an attack which could not have been substantially impeded by defensive fleet
operations. More than 115,000 persons of Japanese ancestry resided along the coast and
were significantly concentrated near many highly sensitive installations essential to the
war effort. Intelligence services records reflected the existence of hundreds of Japanese
organizations in California, Washington, Oregon and Arizona which, prior to December
7, 1941, were actively engaged in advancing Japanese war aims. These records also
disclosed that thousands of American-born Japanese had gone to Japan to receive their
education and indoctrination there and had become rabidly pro-Japanese and then had
returned to the United States. Emperor-worshipping ceremonies were commonly held
and millions of dollars had flowed into the Japanese imperial war chest from the
contributions freely made by Japanese here. The continued presence of a large,
unassimilated, tightly knit and racial group, bound to an enemy nation by strong ties of
race, culture, custom and religion along a frontier vulnerable to attack constituted a
menace which had to be dealt with. Their loyalties were unknown and time was of the
essence. The evident aspirations of the enemy emboldened by his recent successes made
it worse than folly to have left any stone unturned in the building up of our defenses. It
is better to have had this protection and not to have needed it than to have needed it an
not to have had it – as we have learned to our sorrow.
3. On February 14, 1942, I recommended to the War Department that the military
security of the Pacific Coast required the establishment of broad civil control, anti-
sabotage and counter-espionage measures, including the evacuation, there from of all
persons of Japanese ancestry. In recognition of this situation, the President issued
Executive Order No. 9066 on February 19, 1942, authorizing the accomplishment of
these and any other necessary security measures. By letter dated February 20, 1942, the
Secretary of War authorized me to effectuate my recommendations and to exercise all
powers which the Executive Order conferred upon him and upon any military
commander designated by him. A number of separate and distinct security measures
have been instituted under the broad authority thus delegated, and future events may
demand the initiation of others. Among the steps taken was the evacuation of Japanese
from western Washington and Oregon, California and southern Arizona. Transmitted is
the final report of that evacuation ... .
5. There was neither pattern nor precedent for an undertaking of this magnitude and
character; and yet over a period of less than ninety operating days, 110,442 persons of
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Japanese ancestry were evacuated from the West Coast. This compulsory organized
mass migration was conducted under complete military supervision. It was effected
without major incident in a time of extreme pleasure and severe national stress,
consummated at a time when the energies of the military were directed primarily toward
the organization and training of an Army of sufficient size and equipment to fight a
global war. The task was, nevertheless, completed without any appreciable divergence
of military personnel. Comparatively few were used, and there was no interruption in a
training program.
6. In the orderly accomplishment of the program, emphasis was placed upon the making
of due provision against social and economic dislocation. Agricultural production was
not reduced by the evacuation. Over ninety-nine percent of all agricultural acreage in
the affected area owned or operated by evacuees was successfully kept in production.
Purchasers, lessees, or substitute operators were found who took over the acreage
subject to relinquishment. The Los Angeles Herald and Express and the San Diego
Union, on February 23, 1943, and the Tacoma News-Tribune, on February 25, 1943,
reported increases not only in the value but also in the quantity of farm production in
their respective areas.
7. So far as could be foreseen, everything essential was provided to minimize the impact
of evacuation upon evacuees, as well as upon economy. Notwithstanding, exclusive of
the costs of construction of facilities, the purchase of evacuee motor vehicles, the
aggregate of agricultural crop loans made and the purchase of office equipment now in
use for other government purposes, the entire cost was $1.46 per evacuee day for the
period of evacuation, Assembly Center residence and transfer operations. This cost
includes: financial assistance to evacuees who voluntarily migrated from the area before
the controlled evacuation phase of the program. It also covers registration and
processing costs; storage of evacuee property and all other aspects of the evacuee
property protection program. It includes hospitalization and medical care of all evacuees
from the date of evacuation; transportation of evacuees and their personal effects from
their homes to Assembly Centers; complete care in Assembly Centers, including all
subsistence, medical care and nominal compensation for work performed. It also
reflects the cost of family allowances and clothing as well as transportation and meals
during the transfer from Assembly to Relocation Centers... .
90
Hirabayashi v. United States, 320 U.S. 81, 3 S. Ct. 1375, 87 L. Ed. 1774 (1943)
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
Appellant, an American citizen of Japanese ancestry, was convicted in the district court
of violating the Act of Congress of March 21, 1942, 56 Stat. 173, which makes it a
misdemeanor knowingly to disregard restrictions made applicable by a military
commander to persons in a military area prescribed by him as such, all as authorized by
an Executive Order of the President.
The indictment . . . charges that appellant, being a person of Japanese ancestry, had on a
specified date, contrary to a restriction promulgated by the military commander of the
Western Defense Command, Fourth Army, failed to remain in his place of residence in
the designated military area between the hours of 8:00 o'clock p. m. and 6:00 a. m. . .
[A]appellant asserted that the indictment should be dismissed because he was an
American citizen who had never been a subject of and had never borne allegiance to the
Empire of Japan . . On the trial to a jury it appeared that appellant was born in Seattle in
1918, of Japanese parents who had come from Japan to the United States, and who had
never afterward returned to Japan; that he was educated in the Washington public
schools and at the time of his arrest was a senior in the University of Washington; that
he had never been in Japan or had any association with Japanese residing there.
The evidence showed that appellant had failed to report to the Civil Control Station on
May 11 or May 12, 1942, as directed, to register for evacuation from the military area.
He admitted failure to do so, and stated it had at all times been his belief that he would
be waiving his rights as an American citizen by so doing. The evidence also showed
that for like reason he was away from his place of residence after 8:00 p.m. on May 9,
1942. The jury returned a verdict of guilty on both counts and appellant was sentenced
to imprisonment for a term of three months on each, the sentences to run concurrently.
. . . In passing upon the authority of the military commander to make and execute the
order, it becomes necessary to consider in some detail the official action which
preceded or accompanied the order and from which it derives its purported authority.
On December 8, 1941, one day after the bombing of Pearl Harbor by a Japanese air
force, Congress declared war against Japan. On February 19, 1942, the President
promulgated Executive Order No. 9066. The Order recited that "the successful
prosecution of the war requires every possible protection against espionage and against
sabotage to national-defense material, national-defense premises, and national-defense
Utilities. By virtue of the authority vested in him as President and as Commander in
Chief of the Army and Navy, the President purported to "authorize and direct the
Secretary of War, and the Military Commanders . . . to prescribe military areas in such
places and of such extent as he or the appropriate Military Commander may determine,
from which any or all persons may be excluded, and with respect to which, the right of
any person to enter, remain in, or leave shall be subject to whatever restrictions the
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Secretary of War or the appropriate Military Commander may impose in his discretion."
On February 20, 1942, the Secretary of War designated Lt. General J. L. DeWitt as
Military Commander of the Western Defense Command, comprising the Pacific Coast
states and some others, to carry out there the duties prescribed by Executive Order No.
9066. On March 2, 1942, General DeWitt promulgated Public Proclamation No. 1. The
proclamation recited that the entire Pacific Coast "by its geographical location is
particularly subject to attack, to attempted invasion by the armed forces of nations with
which the United States is now at war, and, in connection therewith, is subject to
espionage and acts of sabotage, thereby requiring the adoption of military measures
necessary to establish safeguards against such enemy operations." . . .
Public Proclamation No. 2 of March 16, 1942, issued by General DeWitt, made like
recitals and designated further military areas and zones. It contained like provisions
concerning the exclusion, by subsequent proclamation, of certain persons or classes of
persons from these areas, and the future promulgation of regulations and restrictions
applicable to persons remaining within them. . .
Congress, by the Act of March 21, 1942, provided: "That whoever shall enter, remain
in, leave, or commit any act in any military area or military zone prescribed, under the
authority of an Executive order of the President, by the Secretary of War, or by any
military commander designated by the Secretary of War, contrary to the restrictions
applicable to any such area or zone or contrary to the order of the Secretary of War or
any such military commander, shall, if it appears that he knew or should have known of
the existence and extent of the restrictions or order and that his act was in violation
thereof, be guilty of a misdemeanor and upon conviction shall be liable" to fine or
imprisonment, or both.
Three days later, on March 24, 1942, General DeWitt issued Public Proclamation No. 3.
. . . It declared and established that from and after March 27, 1942, "all alien Japanese,
all alien Germans, all alien Italians, and all persons of Japanese ancestry residing or
being within the geographical limits of Military Area No. 1 . . . shall be within their
place of residence between the hours of 8:00 P. M. and 6:00 A. M., which period is
hereinafter referred to as the hours of curfew." It also imposed certain other restrictions
on persons of Japanese ancestry, and provided that any person violating the regulations
would be subject to the criminal penalties provided by the Act of Congress of March 21,
1942.
Beginning on March 24, 1942, the military commander issued a series of Civilian
Exclusion Orders pursuant to the provisions of Public Proclamation No. 1. Each such
order related to a specified area within the territory of his command. The order
applicable to appellant . . . directed that from and after 12:00 noon, May 16, 1942, all
persons of Japanese ancestry, both alien and non-alien, be excluded from a specified
portion of Military Area No. 1 in Seattle, including appellant's place of residence, and it
required a member of each family, and each individual living alone, affected by the
order to report on May 11 or May 12 to a designated Civil Control Station in Seattle.
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Meanwhile the military commander had issued Public Proclamation No. 4 of March 27,
1942, which recited the necessity of providing for the orderly evacuation and
resettlement of Japanese within the area, and prohibited all alien Japanese and all
persons of Japanese ancestry from leaving the military area until future orders should
permit.
Appellant does not deny that he knowingly failed to obey the curfew order as charged in
the second count of the indictment. . . His contentions are that . . . the Fifth Amendment
prohibits the discrimination made between citizens of Japanese descent and those of
other ancestry. . .
The war power of the national government is "the power to wage war successfully. It
extends to every matter and activity so related to war as substantially to affect its
conduct and progress. The power is not restricted to the winning of victories in the field
and the repulse of enemy forces. It embraces every phase of the national defense,
including the protection of war materials and the members of the armed forces from
injury and from the dangers which attend the rise, prosecution and progress of war.
Since the Constitution commits to the Executive and to Congress the exercise of the war
power in all the vicissitudes and conditions of warfare, it has necessarily given them
wide scope for the exercise of judgment and discretion in determining the nature and
extent of the threatened injury or danger and in the selection of the means for resisting
it.
Where, as they did here, the conditions call for the exercise of judgment and discretion
and for the choice of means by those branches of the Government on which the
Constitution has placed the responsibility of war-making, it is not for any court to sit in
review of the wisdom of their action or substitute its judgment for theirs.
The actions taken must be appraised in the light of the conditions with which the
President and Congress were confronted in the early months of 1942, many of which,
since disclosed, were then peculiarly within the knowledge of the military authorities.
On December 7, 1941, the Japanese air forces had attacked the United States Naval
Base at Pearl Harbor without warning, at the very hour when Japanese diplomatic
representatives were conducting negotiations with our State Department ostensibly for
the peaceful settlement of differences between the two countries. Simultaneously or
nearly so, the Japanese attacked Malaysia, Hong Kong, the Philippines, and Wake and
Midway Islands. On the following day their army invaded Thailand. Shortly afterwards
they sank two British battleships. On December 13th, Guam was taken. On December
24th and 25th they captured Wake Island and occupied Hong Kong. On January 2,
1942, Manila fell, and on February 10th Singapore, Britain's great naval base in the
East, was taken. On February 27th the battle of the Java Sea resulted in a disastrous
naval defeat to the United Nations. By the 9th of March Japanese forces had established
control over the Netherlands East Indies; Rangoon and Burma were occupied; Bataan
and Corregidor were under attack.
Although the results of the attack on Pearl Harbor were not fully disclosed until much
later, it was known that the damage was extensive, and that the Japanese by their
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successes had gained a naval superiority over our forces in the Pacific which might
enable them to seize Pearl Harbor, our largest naval base and the last stronghold of
defense lying between Japan and the west coast. That reasonably prudent men charged
with the responsibility of our national defense had ample ground for concluding that
they must face the danger of invasion, take measures against it, and in making the
choice of measures consider our internal situation, cannot be doubted.
The challenged orders were defense measures for the avowed purpose of safeguarding
the military area in question, at a time of threatened air raids and invasion by the
Japanese forces, from the danger of sabotage and espionage. As the curfew was made
applicable to citizens residing in the area only if they were of Japanese ancestry, our
inquiry must be 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. The alternative which
appellant insists must be accepted is for the military authorities to impose the curfew on
all citizens within the military area, or on none. In a case of threatened danger requiring
prompt action, it is a choice between inflicting obviously needless hardship on the
many, or sitting passive and unresisting in the presence of the threat. We think that
constitutional government, in time of war, is not so powerless and does not compel so
hard a choice if those charged with the responsibility of our national defense have
reasonable ground for believing that the threat is real. . .
. . . At a time of threatened Japanese attack upon this country, the nature of our
inhabitants' attachments to the Japanese enemy was consequently a matter
of grave concern. Of the 126,000 persons of Japanese descent in the United States,
citizens and non-citizens, approximately 112,000 resided in California, Oregon and
Washington at the time of the adoption of the military regulations. Of these
approximately two-thirds are citizens because born in the United States. Not only did
the great majority of such persons reside within the Pacific Coast states but they were
concentrated in or near three of the large cities, Seattle, Portland and Los Angeles, all in
Military Area No. 1
There is support for the view that social, economic and political conditions which have
prevailed since the close of the last century, when the Japanese began to come to this
country in substantial numbers, have intensified their solidarity and have in large
measure prevented their assimilation as an integral part of the white population. In
addition, large numbers of children of Japanese parentage are sent to Japanese language
schools outside the regular hours of public schools in the locality. Some of these
schools are generally believed to be sources of Japanese nationalistic propaganda,
cultivating allegiance to Japan. Considerable numbers, estimated to be approximately
10,000, of American-born children of Japanese parentage have been sent to Japan for all
or a part of their education.
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Congress and the Executive, including the military commander, could have attributed
special significance, in its bearing on the loyalties of persons of Japanese descent, to
the maintenance by Japan of its system of dual citizenship. Children born in the United
States of Japanese alien parents, and especially those children born before December 1,
1924, are under many circumstances deemed, by Japanese law, to be citizens of Japan.
No official census of those whom Japan regards as having thus retained Japanese
citizenship is available, but there is ground for the belief that the number is large.
The large number of resident alien Japanese, approximately one-third of all Japanese
inhabitants of the country, are of mature years and occupy positions of influence in
Japanese communities. The association of influential Japanese residents with Japanese
Consulates has been deemed a ready means for the dissemination of propaganda and for
the maintenance of the influence of the Japanese Government with the Japanese
population in this country.
As a result of all these conditions affecting the life of the Japanese, both aliens and
citizens, in the Pacific Coast area, there has been relatively little social intercourse
between them and the white population. The restrictions, both practical and legal,
affecting the privileges and opportunities afforded to persons of Japanese extraction
residing in the United States, have been sources of irritation and may well have tended
to increase their isolation, and in many instances their attachments to Japan and its
institutions.
Viewing these data in all their aspects, Congress and the Executive could reasonably
have concluded that these conditions have encouraged the continued attachment of
members of this group to Japan and Japanese institutions. These are only some of the
many considerations which those charged with the responsibility for the national
defense could take into account in determining the nature and extent of the danger of
espionage and sabotage, in the event of invasion or air raid attack. The extent of that
danger could be definitely known only after the event and after it was too late to meet it.
Whatever views we may entertain regarding the loyalty to this country of the citizens of
Japanese ancestry, we cannot reject as unfounded the judgment of the military
authorities and of Congress that there were disloyal members of that population, whose
number and strength could not be precisely and quickly ascertained. We cannot say that
the war-making branches of the Government did not have ground for believing that in a
critical hour such persons could not readily be isolated and separately dealt with, and
constituted a menace to the national defense and safety, which demanded that prompt
and adequate measures be taken to guard against it.
Appellant does not deny that, given the danger, a curfew was an appropriate measure
against sabotage. It is an obvious protection against the perpetration of sabotage most
readily committed during the hours of darkness. If it was an appropriate exercise of the
war power its validity is not impaired because it has restricted the citizen's liberty. Like
every military control of the population of a dangerous zone in war time, it necessarily
involves some infringement of individual liberty, just as does the police establishment
of fire lines during a fire, or the confinement of people to their houses during an air raid
95
alarm -- neither of which could be thought to be an infringement of constitutional right.
Like them, the validity of the restraints of the curfew order depends on all the
conditions which obtain at the time the curfew is imposed and which support the order
imposing it.
But appellant insists that the exercise of the power is inappropriate and unconstitutional
because it discriminates against citizens of Japanese ancestry, in violation of the Fifth
Amendment. . . Distinctions between citizens solely because of their ancestry are by
their very nature odious to a free people whose institutions are founded upon the
doctrine of equality. For that reason, legislative classification or discrimination based on
race alone has often been held to be a denial of equal protection. We may assume that
these considerations would be controlling here were it not for the fact that the danger of
espionage and sabotage, in time of war and of threatened invasion, calls upon the
military authorities to scrutinize every relevant fact bearing on the loyalty of
populations in the danger areas. Because racial discriminations are in most
circumstances irrelevant and therefore prohibited, it by no means follows that, in
dealing with the perils of war, Congress and the Executive are wholly precluded from
taking into account those facts and circumstances which are relevant to measures for
our national defense and for the successful prosecution of the war, and which may in
fact place citizens of one ancestry in a different category from others. . . The adoption
by Government, in the crisis of war and of threatened invasion, of measures for the
public safety, based upon the recognition of facts and circumstances which indicate that
a group of one national extraction may menace that safety more than others, is not
wholly beyond the limits of the Constitution and is not to be condemned merely because
in other and in most circumstances racial distinctions are irrelevant . . .
Our investigation here does not go beyond the inquiry whether, in the light of all the
relevant circumstances preceding and attending their promulgation, the challenged
orders and statute afforded a reasonable basis for the action taken in imposing the
curfew. We cannot close our eyes to the fact, demonstrated by experience, that in time
of war residents having ethnic affiliations with an invading enemy may be a greater
source of danger than those of a different ancestry. Nor can we deny that Congress, and
the military authorities acting with its authorization, have constitutional power to
appraise the danger in the light of facts of public notoriety. We need not now attempt to
define the ultimate boundaries of the war power. We decide only the issue as we have
defined it -- we decide only that the curfew order as applied, and at the time it was
applied, was within the boundaries of the war power. In this case it is enough that
circumstances within the knowledge of those charged with the responsibility for
maintaining the national defense afforded a rational basis for the decision which they
made. Whether we would have made it is irrelevant. . .
96
Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944)
MR. JUSTICE BLACK delivered the opinion of the Court.
The petitioner, an American citizen of Japanese descent, was convicted in a federal
district court for remaining in San Leandro, California, a "Military Area," contrary to
Civilian Exclusion Order No. 34 of the Commanding General of the Western
Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese
ancestry should be excluded from that area. No question was raised as to petitioner's
loyalty to the United States. . . It should be noted, to begin with, that all legal
restrictions which curtail the civil rights of a single racial group are immediately
suspect. That is not to say that all such restrictions are unconstitutional. It is to say that
courts must subject them to the most rigid scrutiny. Pressing public necessity may
sometimes justify the existence of such restrictions; racial antagonism never can.
. . . [T]he petitioner was [charged with violating] . . .an Act of Congress, of
March 21, 1942, which provides that
". . . whoever shall enter, remain in, leave, or commit any act in any military
area or military zone prescribed, under the authority of an Executive order of the
President, by the Secretary of War, or by any military commander designated by
the Secretary of War, contrary to the restrictions applicable to any such area or
zone or contrary to the order of the Secretary of War or any such military
commander, shall, if it appears that he knew or should have known of the
existence and extent of the restrictions or order and that his act was in violation
thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine
of not to exceed $ 5,000 or to imprisonment for not more than one year, or both,
for each offense."
. . . In Hirabayashi v. United States, 320 U.S. 81, we sustained a conviction obtained for
violation of the curfew order. The Hirabayashi conviction and this one thus rest on the
same 1942 Congressional Act and the same basic executive and military orders, all of
which orders were aimed at the twin dangers of espionage and sabotage. . . We upheld
the curfew order as an exercise of the power of the government to take steps necessary
to prevent espionage and sabotage in an area threatened by Japanese attack.
In the light of the principles we announced in the Hirabayashi case, we are unable to
conclude that it was beyond the war power of Congress and the Executive to exclude
those of Japanese ancestry from the West Coast war area at the time they did. True,
exclusion from the area in which one's home is located is a far greater deprivation than
constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension
by the proper military authorities of the gravest imminent danger to the public safety
can constitutionally justify either. But exclusion from a threatened area, no less than
curfew, has a definite and close relationship to the prevention of espionage and
sabotage. The military authorities, charged with the primary responsibility of defending
our shores, concluded that curfew provided inadequate protection and ordered
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exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with
Congressional authority to the military to say who should, and who should not,
remain in the threatened areas. . .
Like curfew, exclusion of those of Japanese origin was deemed necessary because of
the presence of an unascertained number of disloyal members of the group, most of
whom we have no doubt were loyal to this country. It was because we could not reject
the finding of the military authorities that it was impossible to bring about an immediate
segregation of the disloyal from the loyal that we sustained the validity of the curfew
order as applying to the whole group. In the instant case, temporary exclusion of the
entire group was rested by the military on the same ground. The judgment that
exclusion of the whole group was for the same reason a military imperative answers the
contention that the exclusion was in the nature of group punishment based on
antagonism to those of Japanese origin. That there were members of the group who
retained loyalties to Japan has been confirmed by investigations made subsequent to the
exclusion. Approximately five thousand American citizens of Japanese ancestry refused
to swear unqualified allegiance to the United States and to renounce allegiance to the
Japanese Emperor, and several thousand evacuees requested repatriation to Japan.
We uphold the exclusion order as of the time it was made and when the petitioner
violated it. In doing so, we are not unmindful of the hardships imposed by it upon a
large group of American citizens. But hardships are part of war, and war is an
aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact
of war in greater or lesser measure. Citizenship has its responsibilities as well as its
privileges, and in time of war the burden is always heavier. Compulsory exclusion of
large groups of citizens from their homes, except under circumstances of direst
emergency and peril, is inconsistent with our basic governmental institutions. But when
under conditions of modern warfare our shores are threatened by hostile forces, the
power to protect must be commensurate with the threatened danger. . .
It is said that we are dealing here with the case of imprisonment of a citizen in a
concentration camp solely because of his ancestry, without evidence or inquiry
concerning his loyalty and good disposition towards the United States. Our task would
be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen
in a concentration camp because of racial prejudice. Regardless of the true nature of the
assembly and relocation centers -- and we deem it unjustifiable to call them
concentration camps with all the ugly connotations that term implies -- we are dealing
specifically with nothing but an exclusion order. To cast this case into outlines of racial
prejudice, without reference to the real military dangers which were presented, merely
confuses the issue. Korematsu was not excluded from the Military Area because of
hostility to him or his race. He was excluded because we are at war with the Japanese
Empire, because the properly constituted military authorities feared an invasion of our
West Coast and felt constrained to take proper security measures, because they decided
that the military urgency of the situation demanded that all citizens of Japanese ancestry
be segregated from the West Coast temporarily, and finally, because Congress, reposing
its confidence in this time of war in our military leaders -- as inevitably it must --
98
determined that they should have the power to do just this. There was evidence of
disloyalty on the part of some, the military authorities considered that the need for
action was great, and time was short. We cannot -- by availing ourselves of the calm
perspective of hindsight -- now say that at that time these actions were unjustified.
MR. JUSTICE JACKSON, dissenting.
Korematsu was born on our soil, of parents born in Japan. The Constitution makes him
a citizen of the United States by nativity and a citizen of California by residence. No
claim is made that he is not loyal to this country. There is no suggestion that apart from
the matter involved here he is not law-abiding and well disposed. Korematsu, however,
has been convicted of an act not commonly a crime. It consists merely of being present
in the state whereof he is a citizen, near the place where he was born, and where all his
life he has lived.
Even more unusual is the series of military orders which made this conduct a crime.
They forbid such a one to remain, and they also forbid him to leave. They were so
drawn that the only way Korematsu could avoid violation was to give himself up to the
military authority. This meant submission to custody, examination, and transportation
out of the territory, to be followed by indeterminate confinement in detention camps.
A citizen's presence in the locality, however, was made a crime only if his parents were
of Japanese birth. Had Korematsu been one of four -- the others being, say, a German
alien enemy, an Italian alien enemy, and a citizen of American-born ancestors,
convicted of treason but out on parole -- only Korematsu's presence would have
violated the order. The difference between their innocence and his crime would result,
not from anything he did, said, or thought, different than they, but only in that he was
born of different racial stock.
Now, if any fundamental assumption underlies our system, it is that guilt is personal and
not inheritable. . . But here is an attempt to make an otherwise innocent act a crime
merely because this prisoner is the son of parents as to whom he had no choice, and
belongs to a race from which there is no way to resign. If Congress in peace-time
legislation should enact such a criminal law, I should suppose this Court would refuse
to enforce it.
But the "law" which this prisoner is convicted of disregarding is not found in an act of
Congress, but in a military order. Neither the Act of Congress nor the Executive Order
of the President, nor both together, would afford a basis for this conviction. It rests on
the orders of General DeWitt. And it is said that if the military commander had
reasonable military grounds for promulgating the orders, they are constitutional and
become law, and the Court is required to enforce them. There are several reasons why I
cannot subscribe to this doctrine.
It would be impracticable and dangerous idealism to expect or insist that each specific
military command in an area of probable operations will conform to conventional tests
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of constitutionality. When an area is so beset that it must be put under military control
at all, the paramount consideration is that its measures be successful, rather than legal.
The armed services must protect a society, not merely its Constitution. The very essence
of the military job is to marshal physical force, to remove every obstacle to its
effectiveness, to give it every strategic advantage. Defense measures will not, and often
should not, be held within the limits that bind civil authority in peace. No court can
require such a commander in such circumstances to act as a reasonable man; he may be
unreasonably cautious and exacting. Perhaps he should be. But a commander in
temporarily focusing the life of a community on defense is carrying out a military
program; he is not making law in the sense the courts know the term. He issues orders,
and they may have a certain authority as military commands, although they may be very
bad as constitutional law.
But if we cannot confine military expedients by the Constitution, neither would I distort
the Constitution to approve all that the military may deem expedient. That is what the
Court appears to be doing, whether consciously or not. I cannot say, from any evidence
before me, that the orders of General DeWitt were not reasonably expedient military
precautions, nor could I say that they were. But even if they were permissible military
procedures, I deny that it follows that they are constitutional. If, as the Court holds, it
does follow, then we may as well say that any military order will be constitutional and
have done with it.
The limitation under which courts always will labor in examining the necessity for a
military order are illustrated by this case. How does the Court know that these orders
have a reasonable basis in necessity? No evidence whatever on that subject has been
taken by this or any other court. There is sharp controversy as to the credibility of the
DeWitt report. So the Court, having no real evidence before it, has no choice but to
accept General DeWitt's own unsworn, self-serving statement, untested by any cross-
examination, that what he did was reasonable. And thus it will always be when
courts try to look into the reasonableness of a military order.
In the very nature of things, military decisions are not susceptible of intelligent judicial
appraisal. They do not pretend to rest on evidence, but are made on information that
often would not be admissible and on assumptions that could not be proved.
Information in support of an order could not be disclosed to courts without danger that
it would reach the enemy. Neither can courts act on communications made in
confidence. Hence courts can never have any real alternative to accepting the mere
declaration of the authority that issued the order that it was reasonably necessary from a
military viewpoint.
Much is said of the danger to liberty from the Army program for deporting and
detaining these citizens of Japanese extraction. But a judicial construction of the due
process clause that will sustain this order is a far more subtle blow to liberty than the
promulgation of the order itself. A military order, however unconstitutional, is not apt to
last longer than the military emergency. Even during that period a succeeding
commander may revoke it all. But once a judicial opinion rationalizes such an order to
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show that it conforms to the Constitution, or rather rationalizes the Constitution to show
that the Constitution sanctions such an order, the Court for all time has validated the
principle of racial discrimination in criminal procedure and of transplanting American
citizens. The principle then lies about like a loaded weapon ready for the hand of any
authority that can bring forward a plausible claim of an urgent need. Every repetition
imbeds that principle more deeply in our law and thinking and expands it to new
purposes. . . A military commander may overstep the bounds of constitutionality, and
it is an incident. But if we review and approve, that passing incident becomes the
doctrine of the Constitution. There it has a generative power of its own, and all that it
creates will be in its own image. Nothing better illustrates this danger than does the
Court's opinion in this case.
It argues that we are bound to uphold the conviction of Korematsu because we upheld
one in Hirabayashi v. United States, 320 U.S. 81, when we sustained these orders in so
far as they applied a curfew requirement to a citizen of Japanese ancestry. I think we
should learn something from that experience.
In that case we were urged to consider only the curfew feature, that being all that
technically was involved, because it was the only count necessary to sustain
Hirabayashi's conviction and sentence. . . [I]n spite of our limiting words we did
validate a discrimination on the basis of ancestry for mild and temporary deprivation of
liberty. Now the principle of racial discrimination is pushed from support of mild
measures to very harsh ones, and from temporary deprivations to indeterminate ones.
And the precedent which it is said requires us to do so is Hirabayashi. . . Because we
said that these citizens could be made to stay in their homes during the hours of dark, it
is said we must require them to leave home entirely; and if that, we are told they may
also be taken into custody for deportation; and if that, it is argued they may also be held
for some undetermined time in detention camps. How far the principle of this case
would be extended before plausible reasons would play out, I do not know.
I should hold that a civil court cannot be made to enforce an order which violates
constitutional limitations even if it is a reasonable exercise of military authority. The
courts can exercise only the judicial power, can apply only law, and must abide by the
Constitution, or they cease to be civil courts and become instruments of military policy.
Of course the existence of a military power resting on force, so vagrant, so centralized,
so necessarily heedless of the individual, is an inherent threat to liberty. But I would not
lead people to rely on this Court for a review that seems to me wholly delusive. The
military reasonableness of these orders can only be determined by military superiors. If
the people ever let command of the war power fall into irresponsible and unscrupulous
hands, the courts wield no power equal to its restraint. The chief restraint upon those
who command the physical forces of the country, in the future as in the past, must be
their responsibility to the political judgments of their contemporaries and to the moral
judgments of history.
101
My duties as a justice as I see them do not require me to make a military judgment as to
whether General DeWitt's evacuation and detention program was a reasonable military
necessity. I do not suggest that the courts should have attempted to interfere with the
Army in carrying out its task. But I do not think they may be asked to execute a military
expedient that has no place in law under the Constitution. I would reverse the judgment
and discharge the prisoner.
102
Ex parte Mitsuye Endo, 323 U.S. 283 (1944)
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This case comes here on a certificate of the Court of Appeals for the Ninth Circuit,
certifying to us questions of law upon which it desires instructions for the decision of
the case. Acting under that section we ordered the entire record to be certified to this
Court so that we might proceed to a decision, as if the case had been brought here by
appeal.
Mitsuye Endo, hereinafter designated as the appellant, is an American citizen of
Japanese ancestry. She was evacuated from Sacramento, California, in 1942, pursuant
to certain military orders which we will presently discuss, and was removed to the Tule
Lake War Relocation Center located at Newell, Modoc County, California. In July,
1942, she filed a petition for a writ of habeas corpus in the District Court of the United
States for the Northern District of California, asking that she be discharged and
restored to liberty. That petition was denied by the District Court in July, 1943, and an
appeal was perfected to the Circuit Court of Appeals in August, 1943. Shortly
thereafter appellant was transferred from the Tule Lake Relocation Center to the
Central Utah Relocation Center located at Topaz, Utah, where she is presently
detained. . .
The history of the evacuation of Japanese aliens and citizens of Japanese ancestry from
the Pacific coastal regions, following the Japanese attack on our Naval Base at Pearl
Harbor on December 7, 1941, and the declaration of war against Japan on December 8,
1941 (55 Stat. 795), has been reviewed in Hirabayashi v. United States, 320 U.S. 81.
It need be only briefly recapitulated here. On February 19, 1942, the President
promulgated Executive Order No. 9066, 7 Fed. Reg. 1407. It recited that "the
successful prosecution of the war requires every possible protection against espionage
and against sabotage to national-defense material, national-defense premises, and
national-defense utilities. And it authorized and directed "the Secretary of War, and the
Military Commanders whom he may from time to time designate, whenever he or any
designated Commander deems such action necessary or desirable, to prescribe military
areas in such places and of such extent as he or the appropriate Military Commander
may determine, from which any or all persons may be excluded, and with respect to
which, the right of any person to enter, remain in, or leave shall be subject to whatever
restrictions the Secretary of War or the appropriate Military Commander may impose
in his discretion. The Secretary of War is hereby authorized to provide for residents of
any such area who are excluded therefrom, such transportation, food, shelter, and other
accommodations as may be necessary, in the judgment of the Secretary of War or the
said Military Commander, and until other arrangements are made, to accomplish the
purpose of this order."
Lt. General J. L. De Witt, Military Commander of the Western Defense Command,
was designated to carry out the duties prescribed by that Executive Order. On March 2,
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1942, he promulgated Public Proclamation No. 1 (7 Fed. Reg. 2320) which recited that
the entire Pacific Coast of the United States "by its geographical location is particularly
subject to attack, to attempted invasion by the armed forces of nations with which the
United States is now at war, and, in connection therewith, is subject to espionage and
acts of sabotage, thereby requiring the adoption of military measures necessary to
establish safeguards against such enemy operations."
It designated certain Military Areas and Zones in the Western Defense Command and
announced that certain persons might subsequently be excluded from these areas. On
March 16, 1942, General De Witt promulgated Public Proclamation No. 2 which
contained similar recitals and designated further Military Areas and Zones. 7 Fed. Reg.
2405.
On March 18, 1942, the President promulgated Executive Order No. 9102 which
established in the Office for Emergency Management of the Executive Office of the
President the War Relocation Authority. 7 Fed. Reg. 2165. It recited that it was made
"in order to provide for the removal from designated areas of persons whose removal is
necessary in the interests of national security." It provided for a Director and
authorized and directed him to "formulate and effectuate a program for the removal,
from the areas designated from time to time by the Secretary of War or appropriate
military commander under the authority of Executive Order No. 9066 of February 19,
1942, of the persons or classes of persons designated under such Executive Order, and
for their relocation, maintenance, and supervision."
The Director was given the authority, among other things, to prescribe regulations
necessary or desirable to promote effective execution of the program.
Congress shortly enacted legislation which, as we pointed out in Hirabayashi v. United
States, supra, ratified and confirmed Executive Order No. 9066. See 320 U.S. pp. 87-
91. It did so by the Act of March 21, 1942 (56 Stat. 173) which provided:
"That whoever shall enter, remain in, leave, or commit any act in any military area or
military zone prescribed, under the authority of an Executive order of the President, by
the Secretary of War, or by any military commander designated by the Secretary of
War, contrary to the restrictions applicable to any such area or zone or contrary to the
order of the Secretary of War or any such military commander, shall, if it appears that
he knew or should have known of the existence and extent of the restrictions or order
and that his act was in violation thereof, be guilty of a misdemeanor and upon
conviction shall be liable to a fine of not to exceed $ 5,000 or to imprisonment for not
more than one year, or both, for each offense."
Beginning on March 24, 1942, a series of 108 Civilian Exclusion Orders n1 were
issued by General De Witt pursuant to Public Proclamation Nos. 1 and 2. Appellant's
exclusion was effected by Civilian Exclusion Order No. 52, dated May 7, 1942. It
ordered that "all persons of Japanese ancestry, both alien and non-alien" be excluded
from Sacramento, California, n2 beginning at noon on May 16, 1942. Appellant was
104
evacuated to the Sacramento Assembly Center on May 15, 1942, and was transferred
from there to the Tule Lake Relocation Center on June 19, 1942.
On May 19, 1942, General De Witt promulgated Civilian Restrictive Order No. 1 (8
Fed. Reg. 982) and on June 27, 1942, Public Proclamation No. 8. 7 Fed. Reg. 8346.
These prohibited evacuees from leaving Assembly Centers or Relocation Centers
except pursuant to an authorization from General De Witt's headquarters. Public
Proclamation No. 8 recited that "the present situation within these military areas
requires as a matter of military necessity" that the evacuees be removed to "Relocation
Centers for their relocation, maintenance and supervision," that those Relocation
Centers be designated as War Relocation Project Areas, and that restrictions on the
rights of the evacuees to enter, remain in, or leave such areas be promulgated. These
restrictions were applicable to the Relocation Centers within the Western Defense
Command n3 and included both of those in which appellant has been confined -- Tule
Lake Relocation Center at Newell, California and Central Utah Relocation Center at
Topaz, Utah. And Public Proclamation No. 8 purported to make any person who was
subject to its provisions and who failed to conform to it liable to the penalties
prescribed by the Act of March 21, 1942.
By letter of August 11, 1942, General De Witt authorized the War Relocation
Authority to issue permits for persons to leave these areas. By virtue of that
delegation and the authority conferred by Executive Order No. 9102, the War
Relocation Authority was given control over the ingress and egress of evacuees from
the Relocation Centers where Mitsuye Endo was confined. n6
The program of the War Relocation Authority is said to have three main features: (1)
the maintenance of Relocation Centers as interim places of residence for evacuees; (2)
the segregation of loyal from disloyal evacuees; (3) the continued detention of the
disloyal and so far as possible the relocation of the loyal in selected communities. In
connection with the latter phase of its work the War Relocation Authority established
a procedure for obtaining leave from Relocation Centers. That procedure, so far as
indefinite leave is concerned, presently provides as follows:
Application for leave clearance is required. An investigation of the applicant is made
for the purpose of ascertaining "the probable effect upon the war program and upon the
public peace and security of issuing indefinite leave" to the applicant. The grant of
leave clearance does not authorize departure from the Relocation Center. Application
for indefinite leave must also be made. Indefinite leave may be granted under 14
specified conditions. n11 For example, it may be granted (1) where the applicant
proposes to accept an employment offer or an offer of support that has been
investigated and approved by the Authority; or (2) where the applicant does not intend
to work but has "adequate financial resources to take care of himself" and a Relocation
Officer has investigated and approved "public sentiment at his proposed destination,"
or (3) where the applicant has made arrangements to live at a hotel or in a private home
approved by a RelocationOfficer while arranging for employment; or (4) where the
applicant proposes to accept employment by a federal or local governmental agency;
105
or (5) where the applicant is going to live with designated classes of relatives.
But even if an applicant meets those requirements, no leave will issue when the
proposed place of residence or employment is within a locality where it has been
ascertained that "community sentiment is unfavorable" or when the applicant plans to
go to an area which has been closed by the Authority to the issuance of indefinite
leave. n12 Nor will such leave issue if the area where the applicant plans to reside or
work is one which has not been cleared for relocation. Moreover, the applicant agrees
to give the Authority prompt notice of any change of employment or residence. And
the indefinite leave which is granted does not permit entry into a prohibited military
area, including those from which these people were evacuated.
Mitsuye Endo made application for leave clearance on February 19, 1943, after the
petition was filed in the District Court. Leave clearance was granted her on August
16, 1943. But she made no application for indefinite leave.
Her petition for a writ of habeas corpus alleges that she is a loyal and law-abiding
citizen of the United States, that no charge has been made against her, that she is being
unlawfully detained, and that she is confined in the Relocation Center under armed
guard and held there against her will.
It is conceded by the Department of Justice and by the War Relocation Authority that
appellant is a loyal and law-abiding citizen. They make no claim that she is detained
on any charge or that she is even suspected of disloyalty. Moreover, they do not
contend that she may be held any longer in the Relocation Center. They concede that it
is beyond the power of the War Relocation Authority to detain citizens against whom
no charges of disloyalty or subversiveness have been made for a period longer than
that necessary to separate the loyal from the disloyal and to provide the necessary
guidance for relocation. But they maintain that detention for an additional period after
leave clearance has been granted is an essential step in the evacuation program.
Reliance for that conclusion is placed on the following circumstances.
When compulsory evacuation from the West Coast was decided upon, plans for taking
care of the evacuees after their detention in the Assembly Centers, to which they were
initially removed, remained to be determined. On April 7, 1942, the Director of the
Authority held a conference in Salt Lake City with various state and federal officials
including the Governors of the intermountain states. "Strong opposition was expressed
to any type of unsupervised relocation and some of the Governors refused to be
responsible for maintenance of law and order unless evacuees brought into their States
were kept under constant military surveillance." As stated by General De Witt in his
report to the Chief of Staff:
"Essentially, military necessity required only that the Japanese population be removed
from the coastal area and dispersed in the interior, where the danger of action in
concert during any attempted enemy raids along the coast, or in advance thereof as
preparation for a full scale attack, would be eliminated. That the evacuation program
106
necessarily and ultimately developed into one of complete Federal supervision, was
due primarily to the fact that the interior states would not accept an uncontrolled
Japanese migration."
The Authority thereupon abandoned plans for assisting groups of evacuees in private
colonization and temporarily put to one side plans for aiding the evacuees in obtaining
private employment. As an alternative the Authority "concentrated on establishment of
Government-operated centers with sufficient capacity and facilities to accommodate
the entire evacuee population." Accordingly, it undertook to care for the basic needs of
these people in the Relocation Centers, to promote as rapidly as possible the permanent
resettlement of as many as possible in normal communities, and to provide indefinitely
for those left at the Relocation Centers. An effort was made to segregate the loyal
evacuees from the others. The leave program which we have discussed was put into
operation and the resettlement program commenced.
It is argued that such a planned and orderly relocation was essential to the success of
the evacuation program; that but for such supervision there might have been a
dangerously disorderly migration of unwanted people to unprepared communities; that
unsupervised evacuation might have resulted in hardship and disorder; that the success
of the evacuation program was thought to require the knowledge that the federal
government was maintaining control over the evacuated population except as the
release of individuals could be effected consistently with their own peace and well-
being and that of the nation; that although community hostility towards the evacuees
has diminished, it has not disappeared and the continuing control of the Authority over
the relocation process is essential to the success of the evacuation program. It is argued
that supervised relocation, as the chosen method of terminating the evacuation, is the
final step in the entire process and is a consequence of the first step taken. It is
conceded that appellant's detention pending compliance with the leave regulations is
not directly connected with the prevention of espionage and sabotage at the present
time. But it is argued that Executive Order No. 9102 confers power to make
regulations necessary and proper for controlling situations created by the exercise of
the powers expressly conferred for protection against espionage and sabotage. The
leave regulations are said to fall within that category.
First. We are of the view that Mitsuye Endo should be given her liberty. In reaching
that conclusion we do not come to the underlying constitutional issues which have
been argued. For we conclude that, whatever power the War Relocation Authority may
have to detain other classes of citizens, it has no authority to subject citizens who are
concededly loyal to its leave procedure.
It should be noted at the outset that we do not have here a question such as was
presented in Ex parte Milligan, 4 Wall. 2, or in Ex parte Quirin, 317 U.S. 1, where the
jurisdiction of military tribunals to try persons according to the law of war was
challenged in habeas corpus proceedings. Mitsuye Endo is detained by a civilian
agency, the War Relocation Authority, not by the military. Moreover, the evacuation
program was not left exclusively to the military; the Authority was given a large
107
measure of responsibility for its execution and Congress made its enforcement subject
to civil penalties by the Act of March 21, 1942. Accordingly, no questions of military
law are involved.
Such power of detention as the Authority has stems from Executive Order No. 9066.
That order is the source of the authority n20 delegated by General De Witt in his letter
of August 11, 1942. And Executive Order No. 9102 which created the War Relocation
Authority purported to do no more than to implement the program authorized by
Executive Order No. 9066.
We approach the construction of Executive Order No. 9066 as we would approach the
construction of legislation in this field. That Executive Order must indeed be
considered along with the Act of March 21, 1942, which ratified and confirmed it (
Hirabayashi v. United States, supra, pp. 87-91) as the Order and the statute together
laid such basis as there is for participation by civil agencies of the federal government
in the evacuation program. Broad powers frequently granted to the President or other
executive officers by Congress so that they may deal with the exigencies of wartime
problems have been sustained. And the Constitution when it committed to the
Executive and to Congress the exercise of the war power necessarily gave them wide
scope for the exercise of judgment and discretion so that war might be waged
effectively and successfully. Hirabayashi v. United States, supra, p. 93. At the same
time, however, the Constitution is as specific in its enumeration of many of the civil
rights of the individual as it is in its enumeration of the powers of his government.
Thus it has prescribed procedural safeguards surrounding the arrest, detention and
conviction of individuals. Some of these are contained in the Sixth Amendment,
compliance with which is essential if convictions are to be sustained. Tot v. United
States, 319 U.S. 463. And the Fifth Amendment provides that no person shall be
deprived of liberty (as well as life or property) without due process of law. Moreover,
as a further safeguard against invasion of the basic civil rights of the individual it is
provided in Art. I, § 9 of the Constitution that "The Privilege of the Writ of Habeas
Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it." See Ex parte Milligan, supra.
We mention these constitutional provisions not to stir the constitutional issues which
have been argued at the bar but to indicate the approach which we think should be
made to an Act of Congress or an order of the Chief Executive that touches the
sensitive area of rights specifically guaranteed by the Constitution. This Court has
quite consistently given a narrower scope for the operation of the presumption of
constitutionality when legislation appeared on its face to violate a specific prohibition
of the Constitution. We have likewise favored that interpretation of legislation which
gives it the greater chance of surviving the test of constitutionality. Those analogies
are suggestive here. We must assume that the Chief Executive and members of
Congress, as well as the courts, are sensitive to and respectful of the liberties of the
citizen. In interpreting a wartime measure we must assume that their purpose was to
allow for the greatest possible accommodation between those liberties and the
exigencies of war. We must assume, when asked to find implied powers in a grant of
108
legislative or executive authority, that the law makers intended to place no greater
restraint on the citizen than was clearly and unmistakably indicated by the language
they used.
The Act of March 21, 1942, was a war measure. The House Report (H. Rep. No. 1906,
77th Cong., 2d Sess., p. 2) stated, "The necessity for this legislation arose from the fact
that the safe conduct of the war requires the fullest possible protection against either
espionage or sabotage to national defense material, national defense premises, and
national defense utilities." That was the precise purpose of Executive Order No. 9066,
for, as we have seen, it gave as the reason for the exclusion of persons from prescribed
military areas the protection of such property "against espionage and against
sabotage." And Executive Order No. 9102 which established the War Relocation
Authority did so, as we have noted, "in order to provide for the removal from
designated of persons whose removal is necessary in the interests of national security."
The purpose and objective of the Act and of these orders are plain. Their single aim
was the protection of the war effort against espionage and sabotage. It is in light of that
one objective that the powers conferred by the orders must be construed.
Neither the Act nor the orders use the language of detention. The Act says that no one
shall "enter, remain in, leave, or commit any act" in the prescribed military areas
contrary to the applicable restrictions. Executive Order No. 9066 subjects the right of
any person "to enter, remain in, or leave" those prescribed areas to such restrictions as
the military may impose. And apart from those restrictions the Secretary of War is only
given authority to afford the evacuees "transportation, food, shelter, and other
accommodations." Executive Order No. 9102 authorizes and directs the War
Relocation Authority "to formulate and effectuate a program for the removal" of the
persons covered by Executive Order No. 9066 from the prescribed military areas and
"for their relocation, maintenance, and supervision." And power is given the Authority
to make regulations "necessary or desirable to promote effective execution of such
program." Moreover, unlike the case of curfew regulations ( Hirabayashi v. United
States, supra), the legislative history of the Act of March 21, 1942, is silent on
detention. And that silence may have special significance in view of the fact that
detention in Relocation Centers was no part of the original program of evacuation but
developed later to meet what seemed to the officials in charge to be mounting hostility
to the evacuees on the part of the communities where they sought to go.
We do not mean to imply that detention in connection with no phase of the evacuation
program would be lawful. The fact that the Act and the orders are silent on detention
does not of course mean that any power to detain is lacking. Some such power might
indeed be necessary to the successful operation of the evacuation program. At least we
may so assume. Moreover, we may assume for the purposes of this case that initial
detention in Relocation Centers was authorized. But we stress the silence of the
legislative history and of the Act and the Executive Orders on the power to detain to
emphasize that any such authority which exists must be implied. If there is to be the
greatest possible accommodation of the liberties of the citizen with this war measure,
any such implied power must be narrowly confined to the precise purpose of the
109
evacuation program.
A citizen who is concededly loyal presents no problem of espionage or sabotage.
Loyalty is a matter of the heart and mind, not of race, creed, or color. He who is loyal
is by definition not a spy or a saboteur. When the power to detain is derived from the
power to protect the war effort against espionage and sabotage, detention which has no
relationship to that objective is unauthorized.
Nor may the power to detain an admittedly loyal citizen or to grant him a conditional
release be implied as a useful or convenient step in the evacuation program, whatever
authority might be implied in case of those whose loyalty was not conceded or
established. If we assume (as we do) that the original evacuation was justified, its
lawful character was derived from the fact that it was an espionage and sabotage
measure, not that there was community hostility to this group of American citizens.
The evacuation program rested explicitly on the former ground not on the latter as the
underlying legislation shows. The authority to detain a citizen or to grant him a
conditional release as protection against espionage or sabotage is exhausted at least
when his loyalty is conceded. If we held that the authority to detain continued
thereafter, we would transform an espionage or sabotage measure into something else.
That was not done by Executive Order No. 9066 or by the Act of March 21, 1942,
which ratified it. What they did not do we cannot do. Detention which furthered the
campaign against espionage and sabotage would be one thing. But detention which has
no relationship to that campaign is of a distinct character. Community hostility even to
loyal evacuees may have been (and perhaps still is) a serious problem. But if authority
for their custody and supervision is to be sought on that ground, the Act of March 21,
1942, Executive Order No. 9066, and Executive Order No. 9102, offer no support.
And none other is advanced. n24 To read them that broadly would be to assume that
the Congress and the President intended that this discriminatory action should be
taken against these people wholly on account of their ancestry even though the
government conceded their loyalty to this country. We cannot make such an
assumption. As the President has said of these loyal citizens:
"Americans of Japanese ancestry, like those of many other ancestries, have shown that
they can, and want to, accept our institutions and work loyally with the rest of us,
making their own valuable contribution to the national wealth and well-being. In
vindication of the very ideals for which we are fighting this war it is important to us to
maintain a high standard of fair, considerate, and equal treatment for the people of this
minority as of all other minorities." Sen. Doc. No. 96, supra, note 7, p. 2.
Mitsuye Endo is entitled to an unconditional release by the War Relocation Authority. .
.
MR. JUSTICE MURPHY, concurring.
I join in the opinion of the Court, but I am of the view that detention in Relocation
110
Centers of persons of Japanese ancestry regardless of loyalty is not only unauthorized
by Congress or the Executive but is another example of the unconstitutional resort to
racism inherent in the entire evacuation program. As stated more fully in my dissenting
opinion in Korematsu v. United States, ante, p. 233, racial discrimination of this nature
bears no reasonable relation to military necessity and is utterly foreign to the ideals
and traditions of the American people.
Moreover, the Court holds that Mitsuye Endo is entitled to an unconditional release by
the War Relocation Authority. It appears that Miss Endo desires to return to
Sacramento, California, from which Public Proclamations Nos. 7 and 11, as well as
Civilian Exclusion Order No. 52, still exclude her. And it would seem to me that the
"unconditional" release to be given Miss Endo necessarily implies "the right to pass
freely from state to state," including the right to move freely into California. Twining
v. New Jersey, 211 U.S. 78, 97; Crandall v. Nevada, 6 Wall. 35. If, as I believe, the
military orders excluding her from California were invalid at the time they were
issued, they are increasingly objectionable at this late date, when the threat of invasion
of the Pacific Coast and the fears of sabotage and espionage have greatly diminished.
For the Government to suggest under these circumstances that the presence of
Japanese blood in a loyal American citizen might be enough to warrant her exclusion
from a place where she would otherwise have a right to go is a position I cannot
sanction.
MR. JUSTICE ROBERTS.
I concur in the result but I cannot agree with the reasons stated in the opinion of the
court for reaching that result.
As in Korematsu v. United States, ante, p. 214, the court endeavors to avoid
constitutional issues which are necessarily involved. The opinion, at great length,
attempts to show that neither the executive nor the legislative arm of the Government
authorized the detention of the relator.
1. With respect to the executive, it is said that none of the executive orders in question
specifically referred to detention and the court should not imply any authorization of
it. This seems to me to ignore patent facts. As the opinion discloses, the executive
branch of the Government not only was aware of what was being done but in fact that
which was done was formulated in regulations and in a so-called handbook open to the
public. I had supposed that where thus overtly and avowedly a department of the
Government adopts a course of action under a series of official regulations the
presumption is that, in this way, the department asserts its belief in the legality and
validity of what it is doing. I think it inadmissible to suggest that some inferior public
servant exceeded the authority granted by executive order in this case. Such a basis of
decision will render easy the evasion of law and the violation of constitutional rights,
for when conduct is called in question the obvious response will be that, however
much the superior executive officials knew, understood, and approved the conduct of
their subordinates, those subordinates in fact lacked a definite mandate so to act. It is to
111
hide one's head in the sand to assert that the detention of relator resulted from an
excess of authority by subordinate officials.
2. As the opinion states, the Act of March 21, 1942, said nothing of detention or
imprisonment, nor did Executive Order No. 9066 of date February 19, 1942, but I
cannot agree that when Congress made appropriations to the Relocation Authority,
having before it the reports, the testimony at committee hearings, and the full details of
the procedure of the Relocation Authority were exposed in Government publications,
these appropriations were not a ratification and an authorization of what was being
done. The cases cited in footnote No. 24 of the opinion do not justify any such
conclusion. The decision now adds an element never before thought essential to
congressional ratification, namely, that if Congress is to ratify by appropriation any
part of the programme of an executive agency the bill must include a specific item
referring to that portion of the programme. In other words, the court will not assume
that Congress ratified the procedure of the authorities in this case in the absence of
some such item as this in the appropriation bill: -- "For the administration of the
conditional release and parole programme in force in relocation centers." In the light of
the knowledge Congress had as to the details of the programme, I think the court is
unjustified in straining to conclude that Congress did not mean to ratify what was
being done.
3. I conclude, therefore, that the court is squarely faced with a serious constitutional
question, -- whether the relator's detention violated the guarantees of the Bill of Rights
of the federal Constitution and especially the guarantee of due process of law. There
can be but one answer to that question. An admittedly loyal citizen has been deprived
of her liberty for a period of years. Under the Constitution she should be free to come
and go as she pleases. Instead, her liberty of motion and other innocent activities have
been prohibited and conditioned. She should be discharged.
112
CIVIL LIBERTIES ACT OF1988
Enacted by the United States Congress, August 10, 1988
―The Congress recognizes that, as described in the Commission on Wartime Relocation
and Internment of Civilians, a grave injustice was done to both citizens and permanent
residents of Japanese ancestry by the evacuation, relocation, and internment
of civilians during World War II.
As the Commission documents, these actions were carried out without adequate
security reasons and without any acts of espionage or sabotage documented by the
Commission, and were motivated largely by racial prejudice, wartime hysteria, and a
failure of political leadership.
The excluded individuals of Japanese ancestry suffered enormous damages, both
material and intangible, and there were incalculable losses in education and job training,
all of which resulted in significant human suffering for which appropriate
compensation has not been made.
For these fundamental violations of the basic civil liberties and constitutional rights of
these individuals of Japanese ancestry, the Congress apologizes on behalf of the
Nation.‖
Based on the findings of the Commission on Wartime Relocation and Internment of
Civilians (CWRIC), the purposes of the Civil Liberties Act of 1988 with respect to
persons of Japanese ancestry included the following:
1) To acknowledge the fundamental injustice of the evacuation, relocation and
internment of citizens and permanent resident aliens of Japanese ancestry during World
War II;
2) To apologize on behalf of the people of the United States for the evacuation,
internment, and relocations of such citizens and permanent residing aliens;
3) To provide for a public education fund to finance efforts to inform the public about
the internment so as to prevent the recurrence of any similar event;
4) To make restitution to those individuals of Japanese ancestry who were interned;
5) To make more credible and sincere any declaration of concern by the United States
over violations of human rights committed by other nations.
113
THE WHITE HOUSE
WASHINGTON
A monetary sum and words alone cannot restore lost years or erase painful memories;
neither cant hey fully convey our Nation’s resolve to rectify injustice and to uphold the
rights of individuals. We can never fully right the wrong of the past. But we can take a
clear stand for justice and recognize that serious injustices were done to Japanese
Americans during World War II.
In enacting a law calling for restitution and offering a sincere apology, you fellow
Americans have, in a very real sense, renewed their traditional commitment to the ideals
of freedom, equality, and justice. You and your family have our best wishes for the
future.
Sincerely,
GEORGE BUSH
PRESIDENT OF THE UNITED STATES
THE WHITE HOUSE
WASHINGTON
October 1, 1993
Over fifty years ago, the United States Government unjustly interned, evacuated, or
relocated you and many other Japanese Americans. Today, on behalf of your fellow
Americans, I offer a sincere apology to you for the actions that unfairly denied Japanese
Americans and their families fundamental liberties during World War II.
In passing the Civil Liberties Act of 1988, we acknowledged the wrongs of the past and
offered redress to those who endured such grave injustice. In retrospect, we understand
that the nation’s actions were rooted deeply in racial prejudice, wartime hysteria, and a
lack of political leadership. We must learn from the past and dedicate ourselves as a
nation to renewing the spirit of equality and our love of freedom. Together, we can
guarantee a future with liberty and justice for all. You and your family have my best
wishes for the future.
Bill Clinton
114
Ex parte Quirin, 317 U.S. 1, 63 S. Ct. 2,87 L. Ed. 3 (1942)
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
. . . The question for decision is whether the detention of petitioners by respondent for
trial by Military Commission, appointed by Order of the President of July 2, 1942,
[*19] on charges preferred against them purporting to set out their violations of the law
of war and of the Articles of War, is in conformity to the laws and Constitution of the
United States. . .
The following facts appear from the petitions or are stipulated. Except as noted they are
undisputed.
All the petitioners were born in Germany; all have lived in the United States. All
returned to Germany between 1933 and 1941. All except petitioner Haupt are
admittedly citizens of the German Reich, with which the United States is at war. Haupt
came to this country with his parents when he was five years old; it is contended that he
became a citizen of the United States by virtue of the naturalization of his parents
during his minority and that he has not since lost his citizenship. . .
After the declaration of war between the United States and the German Reich,
petitioners received training at a sabotage school near Berlin, Germany, where they
were instructed in the use of explosives and in methods of secret writing. Thereafter
petitioners, with a German citizen, Dasch, proceeded from Germany to a seaport in
Occupied France, where petitioners Burger, Heinck and Quirin, together with Dasch,
boarded a German submarine which proceeded across the Atlantic to Amagansett Beach
on Long Island, New York. The four were there landed from the submarine in the hours
of darkness, on or about June 13, 1942, carrying with them a supply of explosives,
fuses, and incendiary and timing devices. While landing they wore German Marine
Infantry uniforms or parts of uniforms. Immediately after landing they buried their
uniforms and the other articles mentioned, and proceeded in civilian dress to New York
City.
The remaining four petitioners at the same French port boarded another German
submarine, which carried them across the Atlantic to Ponte Vedra Beach, Florida. On or
about June 17, 1942, they came ashore during the hours of darkness, wearing caps of
the German Marine Infantry and carrying with them a supply of explosives, fuses, and
incendiary and timing devices. They immediately buried their caps and the other articles
mentioned, and proceeded in civilian dress to Jacksonville, Florida, and thence to
various points in the United States. All were taken into custody in New York or
Chicago by agents of the Federal Bureau of Investigation. All had received instructions
in Germany from an officer of the German High Command to destroy war industries
and war facilities in the United States, for which they or their relatives in Germany were
to receive salary payments from the German Government. They also had been paid by
the German Government during their course of training at the sabotage school and had
received substantial sums in United States currency, which were in their possession
115
when arrested. The currency had been handed to them by an officer of the German High
Command, who had instructed them to wear their German uniforms while landing in the
United States. 1
The President, as President and Commander in Chief of the Army and Navy, by Order
of July 2, 1942, appointed a Military Commission and directed it to try petitioners for
offenses against the law of war and the Articles of War, and prescribed regulations for
the procedure on the trial and for review of the record of the trial and of any judgment
or sentence of the Commission. On the same day, by Proclamation, the President
declared that "all persons who are subjects, citizens or residents of any nation at war
with the United States or who give obedience to or act under the direction of any such
nation, and who during time of war enter or attempt to enter the United States . . .
through coastal or boundary defenses, and are charged with committing or attempting or
preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the
law of war, shall be subject to the law of war and to the jurisdiction of military
tribunals."
The Proclamation also stated in terms that all such persons were denied access to the
courts. . .
Pursuant to direction of the Attorney General, the Federal Bureau of Investigation
surrendered custody of petitioners to respondent, Provost Marshal of the Military
District of Washington, who was directed by the Secretary of War to receive and keep
them in custody, and who thereafter held petitioners for trial before the Commission.
On July 3, 1942, the Judge Advocate General's Department of the Army prepared and
lodged with the Commission . . . charges against petitioners, supported by
specifications. . . The Commission met on July 8, 1942, and proceeded with the trial,
which continued in progress while the causes were pending in this Court. On July 27th,
before petitioners' applications to the District Court, all the evidence for the prosecution
n1 From June 12 to June 18, 1942, Amagansett Beach, New York, and Ponte Vedra Beach,
1
Florida, were within the area designated as the Eastern Defense Command of the United
States Army, and subject to the provisions of a proclamation dated May 16, 1942, issued by
Lieutenant General Hugh A. Drum, United States Army, Commanding General, Eastern
Defense Command (see 7 Federal Register 3830). On the night of June 12-13, 1942, the
waters around Amagansett Beach, Long Island, were within the area comprising the Eastern
Sea Frontier, pursuant to the orders issued by Admiral Ernest J. King, Commander in Chief of
the United States Fleet and Chief of Naval Operations. On the night of June 16-17, 1942, the
waters around Ponte Vedra Beach, Florida, were within the area comprising the Gulf Sea
Frontier, pursuant to similar orders.
On the night of June 12-13, 1942, members of the United States Coast Guard, unarmed,
maintained a beach patrol along the beaches surrounding Amagansett, Long Island, under
written orders mentioning the purpose of detecting landings. On the night of June 17-18,
1942, the United States Army maintained a patrol of the beaches surrounding and including
Ponte Vedra Beach, Florida, under written orders mentioning the purpose of detecting the
landing of enemy agents from submarines.
116
and the defense had been taken by the Commission and the case had been closed except
for arguments of counsel. It is conceded that ever since petitioners' arrest the state and
federal courts in Florida, New York, and the District of Columbia, and in [*24] the
states in which each of the petitioners was arrested or detained, have been open and
functioning normally. . .
The Government . . . insists that petitioners must be denied access to the courts, both
because they are enemy aliens or have entered our territory as enemy belligerents, and
because the President's Proclamation undertakes in terms to deny such access to the
class of persons defined by the Proclamation, which aptly describes the character and
conduct of petitioners. It is urged that if they are enemy aliens or if the Proclamation
has force, no court may afford the petitioners a hearing. But there is certainly nothing in
the Proclamation to preclude access to the courts for determining its applicability to the
particular case. And neither the Proclamation nor the fact that they are enemy aliens
forecloses consideration by the courts of petitioners' contentions that the Constitution
and laws of the United States constitutionally enacted forbid their trial by military
commission. . . [W]e have resolved those questions by our conclusion that the
Commission has jurisdiction to try the charge preferred against petitioners.
We are not here concerned with any question of the guilt or innocence of petitioners.2
Constitutional safeguards for the protection of all who are charged with offenses are not
to be disregarded in order to inflict merited punishment on some who are guilty. Ex
parte Milligan. But the detention and trial of petitioners -- ordered by the President in
the declared exercise of his powers as Commander in Chief of the Army in time of war
and of grave public danger -- are not to be set aside by the courts without the clear
conviction that they are in conflict with the Constitution or laws of Congress
constitutionally enacted.
Congress and the President, like the courts, possess no power not derived from the
Constitution. But one of the objects of the Constitution, as declared by its preamble, is
to "provide for the common defence." As a means to that end, the Constitution gives to
Congress the power to "provide for the common Defence," Art. I, § 8, cl. 1; "To raise
and support Armies," "To provide and maintain a Navy," Art. I, § 8, cl. 12, 13; and "To
make Rules for the Government and Regulation of the land and naval Forces," Art. I, §
8, cl. 14. Congress is given authority "To declare War, grant Letters of Marque and
Reprisal, and make Rules concerning Captures on Land and Water," Art. I, § 8, cl. 11;
and "To define and punish Piracies and Felonies committed on the high Seas, and
Offences against the Law of Nations," Art. I, § 8, cl. 10. And finally, the Constitution
authorizes Congress "To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any Department or Officer
thereof." Art. I, § 8, cl. 18.
n4 As appears from the stipulation, a defense offered before the Military Commission was
2
that petitioners had had no intention to obey the orders given them by the officer of the
German High Command.
117
The Constitution confers on the President the "executive Power," Art. II, § 1, cl. 1, and
imposes on him the duty to "take Care that the Laws be faithfully executed." Art. II, § 3.
It makes him the Commander in Chief of the Army and Navy, Art. II, § 2, cl. 1, and
empowers him to appoint and commission officers of the United States. Art. II, § 3, cl.
1.
The Constitution thus invests the President, as Commander in Chief, with the power to
wage war which Congress has declared, and to carry into effect all laws passed by
Congress for the conduct of war and for the government and regulation of the Armed
Forces, and all laws defining and punishing offenses against the law of nations,
including those which pertain to the conduct of war.
By the Articles of War, Congress . . . recognize the "military commission" appointed by
military command as an appropriate tribunal for the trial and punishment of offenses
against the law of war . . . Articles 38 and 46 authorize the President, with certain
limitations, to prescribe the procedure for military commissions. Articles 81 and 82
authorize trial, either by court martial or military commission, of those charged with
relieving, harboring or corresponding with the enemy and those charged with spying.
And Article 15 declares that "the provisions of these articles conferring jurisdiction
upon courts martial shall not be construed as depriving military commissions . . . or
other military tribunals of concurrent jurisdiction in respect of offenders or offenses that
by statute or by the law of war may be triable by such military commissions . . . or other
military tribunals." Article 2 includes among those persons subject to military law the
personnel of our own military establishment. But this, as Article 12 provides, does not
exclude from that class "any other person who by the law of war is subject to trial by
military tribunals" and who under Article 12 may be tried by court martial or under
Article 15 by military commission.
Similarly the Espionage Act of 1917, which authorizes trial in the district courts of
certain offenses that tend to interfere with the prosecution of war, provides that nothing
contained in the act "shall be deemed to limit the jurisdiction of the general courts-
martial, military commissions, or naval courts-martial."
From the very beginning of its history this Court has recognized and applied the law of
war as including that part of the law of nations which prescribes, for the conduct of war,
the status, rights and duties of enemy nations as well as of enemy individuals. n5 By the
Articles of War, and especially Article 15, Congress has explicitly provided, so far as it
may constitutionally do so, that military tribunals shall have jurisdiction to try offenders
or offenses against the law of war in appropriate cases. Congress, in addition to making
rules for the government of our Armed Forces, has thus exercised its authority to define
and punish offenses against the law of nations by sanctioning, within constitutional
limitations, the jurisdiction of military commissions to try persons for offenses which,
according to the rules and precepts of the law of nations, and more particularly the law
of war, are cognizable by such tribunals. And the President, as Commander in Chief, by
his Proclamation in time of war has invoked that law. By his Order creating the present
118
Commission he has undertaken to exercise the authority conferred upon him by
Congress, and also such authority as the Constitution itself gives the Commander in
Chief, to direct the performance of those functions which may constitutionally be
performed by the military arm of the nation in time of war.
An important incident to the conduct of war is the adoption of measures by the military
command not only to repel and defeat the enemy, but to seize and subject to disciplinary
measures those enemies who in their attempt to thwart or impede our military effort
have violated the law [*29] of war. It is unnecessary for present purposes to determine
to what extent the President as Commander in Chief has constitutional power to create
military commissions without the support of Congressional legislation. For here
Congress has authorized trial of offenses against the law of war before such
commissions. We are concerned only with the question whether it is within the
constitutional power of the National Government to place petitioners upon trial before a
military commission for the offenses with which they are charged. We must therefore
first inquire whether any of the acts charged is an offense against the law of war
cognizable before a military tribunal, and if so whether the Constitution prohibits the
trial. We may assume that there are acts regarded in other countries, or by some writers
on international law, as offenses against the law of war which would not be triable by
military tribunal here, either because they are not recognized by our courts as violations
of the law of war or because they are of that class of offenses constitutionally triable
only by a jury. It was upon such grounds that the Court denied the right to proceed by
military tribunal in Ex parte Milligan, supra. But as we shall show, these petitioners
were charged with an offense against the law of war which the Constitution does not
require to be tried by jury. . .
By universal agreement and practice, the law of war draws a distinction between the
armed forces and the peaceful populations of belligerent nations and also between
those who are lawful and unlawful combatants. Lawful combatants are subject to
capture and detention as prisoners of war by opposing military forces. Unlawful
combatants are likewise subject to capture and detention, but in addition they are
subject to trial and punishment by military tribunals for acts which render their
belligerency unlawful. The spy who secretly and without uniform passes the military
lines of a belligerent in time of war, seeking to gather military information and
communicate it to the enemy, or an enemy combatant who without uniform comes
secretly through the lines for the purpose of waging war by destruction of life or
property, are familiar examples of belligerents who are generally deemed not to be
entitled to the status of prisoners of war, but to be offenders against the law of war
subject to trial and punishment by military tribunals.
Such was the practice of our own military authorities before the adoption of the
Constitution, and during the Mexican and Civil Wars . . .
Our Government, by thus defining lawful belligerents entitled to be treated as prisoners
of war, has recognized that there is a class of unlawful belligerents not entitled to that
privilege, including those who, though combatants, do not wear "fixed and distinctive
119
emblems." And by Article 15 of the Articles of War Congress has made provision for
their trial and punishment by military commission, according to "the law of war."
By a long course of practical administrative construction by its military authorities, our
Government has likewise recognized that those who during time of war pass
surreptitiously from enemy territory into our own, discarding their uniforms upon entry,
for the commission of hostile acts involving destruction of life or property, have the
status of unlawful combatants punishable as such by military commission. This precept
of the law of war has been so recognized in practice both here and abroad, and has so
generally been accepted as valid by authorities on international law that we think it
must be regarded as a rule or principle of the law of war recognized by this
Government by its enactment of the Fifteenth Article of War. . .
Citizenship in the United States of an enemy belligerent does not relieve him from the
consequences of a belligerency which is unlawful because in violation of the law of
war. Citizens who associate themselves with the military arm of the enemy government,
and with its aid, guidance and direction enter this country bent on hostile acts, are
enemy belligerents within the meaning of the Hague Convention and the law of war. . .
Nor are petitioners any the less belligerents if, as they argue, they have not actually
committed or attempted to commit any act of depredation or entered the theatre or
zone of active military operations. The argument leaves out of account the nature of
the offense which the Government charges and which the Act of Congress, by
incorporating the law of war, punishes. It is that each petitioner, in circumstances
which gave him the status of an enemy belligerent, passed our military and naval lines
and defenses or went behind those lines, in civilian dress and with hostile purpose. The
offense was complete when with that purpose they entered -- or, having so entered,
they remained upon -- our territory in time of war without uniform or other appropriate
means of identification. . .
Petitioners, and especially petitioner Haupt, stress the pronouncement of this Court in
the Milligan case, supra, p. 121, that the law of war "can never be applied to citizens in
states which have upheld the authority of the government, and where the courts are
open and their process unobstructed." Elsewhere in its opinion, at pp. 118, 121-22 and
131, the Court was at pains to point out that Milligan, a citizen twenty years resident in
Indiana, who had never been a resident of any of the states in rebellion, was not an
enemy belligerent either entitled to the status of a prisoner of war or subject to the
penalties imposed upon unlawful belligerents. We construe the Court's statement as to
the inapplicability of the law of war to Milligan's case as having particular reference to
the facts before it. From them the Court concluded that Milligan, not being a part of or
associated with the armed forces of the enemy, was a non-belligerent, not subject to
the law of war save as -- in circumstances found not there to be present, and not
involved here -- martial law might be constitutionally established.
The Court's opinion is inapplicable to the case presented by the present record. We
have no occasion now to define with meticulous care the ultimate boundaries of the
120
jurisdiction of military tribunals to try persons according to the law of war. It is enough
that petitioners here, upon the conceded facts, were plainly within those boundaries,
and were held in good faith for trial by military commission, charged with being
enemies who, with the purpose of destroying war materials and utilities, entered, or
after entry remained in, our territory without uniform -- an offense against the law of
war. We hold only that those particular acts constitute an offense against the law of
war which the Constitution authorizes to be tried by military commission. . .
121
Forfeiting ―Enduring Freedom‖ for ―Homeland Security‖: A Constitutional Analysis of
the USA PATRIOT Act and the Justice Department’s Anti-Terrorism Initiatives
American University Law Review, Vol. 51, Page 1081 (August 2002)
[footnotes deleted]
By John W. Whitehead and Steven H. Aden
The Rutherford Institute, Charlottesville, Virginia
Introduction
"They that can give up essential liberty to obtain a little temporary safety
deserve neither liberty nor safety." - Benjamin Franklin (Inscribed on the
pedestal of the Statue of Liberty)
One day after the September 11, 2001, terrorist attacks on the United States, President
George W. Bush vowed that "we will not allow this enemy to win the war by changing
our way of life or restricting our freedoms." Yet within several months following the
attacks, it became increasingly evident that the "War on Terrorism" was evolving into a
reshaping of our national security policies and challenging the value that Americans
have always placed on civil liberties. While Congress' anti-terrorism law, the so-called
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism ("Patriot Act") may not have been designed to restrict
American citizens' civil liberties, its unintended consequences threaten the fundamental
constitutional rights of people who have absolutely no involvement with terrorism.
Americans' liberties have been trammeled in a variety of different ways. Under the
guise of stopping terrorism, law enforcement officials and government leaders have
now been given the right to conduct searches of homes and offices without prior notice,
use roving wiretaps to listen in on telephone conversations, and monitor computers and
e-mail messages, even to the degree of eavesdropping on attorney/client conversations.
In addition, the President has made efforts to bring suspected terrorists into military
tribunals for prosecution. Finally, a growing sentiment for the establishment of a
national identification card system in the United States has emerged, threatening to
force all citizens to be "tagged."
For the sake of greater security in this post-September 11th climate, many Americans
have expressed the willingness to relinquish some of their freedoms. This readiness is
somewhat understandable in light of the terrorist attacks on the World Trade Center and
the Pentagon, the anthrax scare, and the resulting exhaustive coverage that the media
has afforded these events. However, Americans must be mindful that while the security
of husbands, wives, children, and friends may be worth some limitations placed on
American freedoms, even small infringements, over time, may become major
compromises that alter this country's way of life.
122
The clash between civil liberties and national security is not a new one, and history
demonstrates that, in times of war, the courts - even the United States Supreme Court -
have upheld restrictive laws that abridge rights otherwise protected by the Constitution.
Unfortunately, history repeats itself. Chief Justice William H. Rehnquist has
consistently recognized that times of questionable international safety may impact the
American stance on its domestic freedoms. Rehnquist has written, "It is neither
desirable nor is it remotely likely that civil liberty will occupy as favored a position in
wartime as it does in peacetime." The United States is now at war, and the protection of
civil liberties may become less of a priority.
Americans should not underestimate the impact that such reprioritizing will have in the
long run. Whatever the outcome of the undeclared "War on Terrorism," Americans
should not labor under the misconception that freedoms forsaken today might somehow
be regained tomorrow. Unlike previous wars, this time, enemies may not reach a truce
which would signal the return of civil liberties. With or without sunset clauses, there is
no horizon for recapturing any freedoms relinquished today. The U.S. Constitution, if
compromised now, may never again be the same. In today's world, once civil liberties
are fenced, they may never be freed, becoming captive to the warden of national
security.
Yet the ultimate outcome, at least for now, is perhaps less important than understanding
that Americans are operating in a new paradigm. Concerns for security and freedom
will always conflict to some degree. Therefore, Americans must understand that this is a
new kind of "War on Terrorism," with no immediate end in sight, and that it is also a
new kind of challenge to civil liberties. Thus, it is time for a fundamental rethinking of
what U.S. citizens consider basic freedoms. Americans may decide that certain
freedoms, especially those guaranteed in the United States Constitution, are simply too
precious to sacrifice at any cost, even on the altar of security.
I. Overview: The Newly-Created Legal Framework
On September 14, 2001, in response to the September 11th attacks on the World Trade
Center and the Pentagon, President George W. Bush declared a state of emergency,
invoking presidential powers. The Proclamation was issued because of the terrorist
attacks and the "continuing and immediate threat of future attacks on the United States."
The Order provides important powers, such as the authority to summon reserve troops
and marshal military units.
From the outset, the Bush Administration has chosen to view the attacks as acts of war
by foreign aggressors, rather than as criminal acts that require redress by the justice
system. Two weeks after the attacks, the nation's chief law enforcement officer,
Attorney General John Ashcroft, submitted written testimony to the Senate Judiciary
Committee on behalf of President Bush and asked Congress for broad new powers to
enable the Administration to conduct its "War on Terrorism." In later testimony,
Ashcroft stated that the Department of Justice's mission was redefined, placing
123
the defense of the nation and its citizens above all else. This historic "redefinition" of
the Justice Department's mission turned the focus of federal law enforcement from
apprehending and incarcerating criminals to detecting and halting terrorist activity on
American soil and abroad. Ashcroft's written statement to the Senate Committee on the
Judiciary emphasized that the attacks presented a new challenge for law enforcement
officials, due to their occurrence on American soil, and stated that, in light of this,
America cannot wait to take precautionary actions, as "we must prevent first, prosecute
second."
Ashcroft reiterated to the Senate this new emphasis on "prevention" over prosecution,
directing the DOJ, at the President's request, toward one single, over-arching and
overriding objective: "to save innocent lives from further acts of terrorism." Ashcroft
testified that the DOJ, as well as the FBI, was undergoing "a wartime reorganization"
that focused its efforts on the prevention of terrorism.
Whatever practical wisdom the adoption of this martial mindset may hold for
preventing similar attacks in the future, its ramifications for the civil rights of American
citizens and resident non-citizens are becoming increasingly evident. Congress passed
the Patriot Act in response to the Bush Administration's request for "the tools" to fight
terrorism.
This Act is only the phalanx of a broad new set of operating procedures adopted by
federal law enforcement agencies, procedures which demonstrate a reassessment by the
Bush Administration - and perhaps the American public itself - of the political
expediency of maintaining a commitment to certain established civil and constitutional
rights. Some measures, such as the Patriot Act, were politically driven by both the
executive and legislative branches, and were well publicized. Others have been quietly
ushered in as executive orders or agency operating procedures. Regardless of the
manner of execution, it is clear that all of these measures will have a significant impact
on the American views of civil liberties enshrined in the Constitution and the traditional
functioning of the government.
A. Centralization of Law Enforcement Powers in the Justice Department
In order to empower the Department of Justice, Congress passed the Patriot Act on
October 26, 2001, and President Bush signed it into law the next day. The Act is
exceedingly long and complex, comprising ten-parts and over 300 pages. Therefore, the
subsequent analysis in this article will focus only on certain provisions of the Act that
are particularly troubling for their potential impact on civil liberties and constitutional
freedoms.
The Justice Department has warned that it will use its new authority under the Patriot
Act to the maximum. Exemplifying this intent, Attorney General Ashcroft stated:
124
Within hours of passage of the USA PATRIOT Act, we made use of its
provisions to begin enhanced information sharing between the law-enforcement
and intelligence communities. We have used the provisions allowing nationwide
search warrants for e-mail and subpoenas for payment information. And we
have used the Act to place those who access the Internet through cable
companies on the same footing as everyone else.
Ashcroft then described the Justice Department's response to the September 11th attacks
as "the largest, most comprehensive criminal investigation in world history." Ashcroft
reported that, as of mid-December 2001, the government was utilizing 4,000 FBI agents
to investigate terrorism.
The Patriot Act's centralization of federal law enforcement authority in the Justice
Department has significantly empowered this massive investigation. Section 808 of the
Act reassigns the authority for investigating numerous federal crimes of violence from
other federal law enforcement agencies - such as the Secret Service, the Bureau of
Alcohol, Tobacco and Firearms, and the Coast Guard - to the Attorney General, thus
adding to his authority for investigating "all federal crimes of terrorism." These new
areas of investigation include assault against specified federal high office holders;
threats of homicide, assault, intimidation, property damage, arson, or bombing; arson or
bombing of federal property; conspiracy to destroy property of a foreign government;
malicious mischief against United States government property; destruction of property
of an energy utility; assault against presidential or White House officials; sabotage of
harbor defenses; and sabotage of war industry facilities. In essence, to combat terrorism,
Congress has granted the Attorney General the power to investigate not only acts of
terrorism but most acts of violence against public offices and property.
Additionally, the Justice Department's new authority appears to extend beyond its
traditional geographical limitation - the national borders - in two ways. First, Justice's
terrorism initiatives are being conducted multilaterally. The Attorney General has said
that agencies under his direction, including the FBI, are "engaged with their
international counterparts" in Europe and the Middle East in investigating terrorists.
Second, Justice's subject matter of investigation has been extended to cover the flow of
foreigners into the United States. The Bush Administration appears determined to
assign control over lawful entry into the United States, a monitoring function of the
State Department, to the Justice Department. Regarding this transition, Ashcroft stated:
"Working with the State Department, we have imposed new screening requirements on
certain applicants for non-immigrant visas." He continued, explaining that, "at the
direction of the President, we have created a Foreign Terrorist Tracking Task Force to
ensure that we do everything we can to prevent terrorists from entering the country, and
to locate and remove those who already have." The extent to which these executive
branch powers have been consolidated in one official, the Attorney General, is
unprecedented in recent history.
The Administration has made further efforts to consolidate power over the "War on
Terrorism" into the Executive branch by displaying resistance to congressional
125
oversight of its new powers. For example, section 904 of the Patriot Act allowed the
Secretary of Defense, the Attorney General, and the Director of the CIA to defer the
date for submitting any required intelligence report to Congress until February 1, 2002,
or until a later specified date if they certified that it would "impede the work of officers
or employees who are engaged in counterterrorism activities." This provision
effectively postponed the statutory obligation imposed upon these public servants to
report to Congress regarding the "War on Terrorism," on foreign or domestic fronts,
virtually indefinitely. Ashcroft echoed this resistance to oversight in testimony before
the Senate. Although he acknowledged his obligation to report on the Administration's
activities, he also stated:
Congress's power of oversight is not without limits ... . In some areas ... I cannot
and will not consult you ... . I cannot and will not divulge the contents, the
context, or even the existence of such advice to anyone - including Congress -
unless the President instructs me to do so. I cannot and will not divulge
information, nor do I believe that anyone here would wish me to divulge
information, that will damage the national security of the United States, the
safety of its citizens or our efforts to ensure the same in an ongoing
investigation.
In other words, the Administration has reserved to itself the right to determine what
information it will disclose to Congress in its oversight role and what information it will
withhold as sensitive.
B. CIA Oversight of Domestic Intelligence Gathering
At the same time that the Bush Administration has centralized authority for
international and domestic law enforcement in the Justice Department, the
Administration has used the Patriot Act to transfer authority for coordinating domestic
intelligence gathering from the Justice Department to the Central Intelligence Agency.
The Patriot Act added a new subsection to the statute, defining the CIA Director's
authority to provide that the CIA Director will have the power to set requirements and
priorities in the collection of foreign intelligence information under the Foreign
Intelligence Surveillance Act of 1978 and "to provide assistance to the Attorney General
to ensure that information derived from electronic surveillance or physical searches
under that Act is disseminated so it may be used efficiently and effectively for foreign
intelligence purposes ... ."
This coordinating role was formerly taken by the Attorney General. The Patriot Act has
given the CIA the central authority to gather and use intelligence information garnered
from domestic sources, including intelligence on United States citizens and residents.
This authority raises an inherent conflict with another section of the statute that
ostensibly limits the CIA's authority, section 403-3(d)(1), which provides that the CIA
"shall have no police, subpoena, or law enforcement powers or internal security
functions." By allowing the CIA to take a prominent position over the Justice
Department and the FBI, this provision of the Patriot Act turns on its head existing
126
policy and practice that was established as a result of CIA abuses during the Cold War
era, and permits the CIA to begin, once again, to spy on American citizens. Moreover,
under the legislation, the federal government has reserved the specific right to monitor
religious groups and charitable organizations as well, a practice that has subjected
federal law enforcement authorities to considerable judicial scrutiny for its chilling
effect on the right to free association and worship under the First Amendment. The
Patriot Act also gives the CIA unprecedented access to a broad range of intelligence
gathering powers that allow information collection and monitoring of American
citizens.
C. Expanding the Scope of "Terrorism" and "Domestic Terrorism"
The Justice Department assures Americans that its new legal and investigatory authority
is "carefully drawn" to target only "terrorists." At the same time that the Justice
Department is ostensibly targeting only this "narrow class of individuals," it has greatly
expanded that class of suspects through the Patriot Act. Section 802 of the Act amends
the criminal code, 18 U.S.C. 2331, to add a new definition of "domestic terrorism" to
include activities that:
(A) involve acts dangerous to human life that are a violation of the criminal laws
of the United States or of any State;
(B) appear to be intended -
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by mass destruction,
assassination, or kidnapping; or
(iii) to effect the conduct of a government by mass destruction,
assassination, or kidnapping; and
(C) occur primarily within the territorial jurisdiction of the United States.
Likewise, section 808 of the Patriot Act amends 18 U.S.C. 2332b to include any such
acts that result in virtually any federal crime of violence. Conceivably, these extensions
of the definition of "terrorist" could bring within their sweep diverse domestic political
groups, which have been accused of acts of intimidation or property damage such as
Act Up, People for the Ethical Treatment of Animals (PETA), Operation Rescue, and
the Vieques demonstrators.
Cognizant of these criticisms and fears, the Attorney General recently assured the
Senate that the U.S. government's definition of terrorism has, since 1983, included as
terrorists only "those who perpetrate premeditated, politically motivated violence
against noncombatant targets." If that is true, it certainly begs the question of why
the Bush Administration felt the need to redefine "terrorism" to include a wide variety
of domestic criminal acts.
D. Disregard of the Constitutional Rights of Resident Non-Citizens
127
The Supreme Court has affirmatively held that the Fifth and Sixth Amendment rights of
due process and access to a jury trial in criminal matters apply to all "persons" and those
accused in criminal cases, respectively, not just to citizens. In the case of lawfully
resident and temporary aliens, the Supreme Court has affirmed that where such
permanent alien residents remain "physically present" in the United States, they are
deemed "persons" for purposes of the Fifth Amendment, and, as such, are entitled to
due process protections of life, liberty, and property. Therefore, "[a] lawful resident
alien may not captiously be deprived of his constitutional rights to due process."
Furthermore, the Supreme Court has held that even the millions of undocumented aliens
living inside U.S. borders are entitled to the protections of the Bill of Rights. This
entitlement flows not only from the broad reach of the Fifth Amendment, but also from
principles of equal protection of the law to which all those obeying such laws are
entitled. The Supreme Court has stated that "the Fifth Amendment, as well as the
Fourteenth Amendment, protects every one of these persons from deprivation of life,
liberty, or property without due process of law. Even one whose presence in this
country is unlawful, involuntary, or transitory is entitled to that constitutional
protection." For example, in Plyler v. Doe, the Supreme Court held that a Texas public
school district's exclusion of illegal immigrants from public education denied them
equal protection under the Fourteenth Amendment.
These constitutional protections also apply to the exclusion of aliens within U.S.
borders. The Supreme Court has clarified the extent of constitutional protection by
stating that, "once an alien enters the country, the legal circumstance changes, for the
Due Process Clause applies to all "persons' within the United States, including aliens,
whether their presence here is lawful, unlawful, temporary, or permanent." Accordingly,
proceedings for the expulsion of aliens must conform to fairness incorporated by due
process standards.
In view of the historical extension of constitutional protections to all who reside within
America's borders, the seemingly intentional disregard for the constitutional status of
resident and temporary aliens displayed in the Administration's recent actions and
certain provisions of the Patriot Act is alarming. Several of the more egregious
examples, such as suspension of the right to a jury trial, infringements upon the right to
counsel, and seizures of property without due process, are discussed below. However,
the lack of concern for the rights of non-citizens runs thematically through the
Administration's response to the terrorist attacks.
II. The First Amendment Rights of Free Speech and Association
Much of the legislation enacted pursuant to the government's prosecution of the "War
on Terrorism" has had a deleterious effect on the sacrosanct protection of the First
Amendment right to free speech. The First Amendment precludes Congress from
creating laws that will abridge "the freedom of speech, or of the press; or the right of the
people peaceably to assemble."
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The First Amendment encompasses the right to advocate ideas, to speak freely, to
associate with whomever one chooses, and to petition the government for redress of
grievances. Such activities are protected against blanket prohibitions and from
restrictions based upon government opposition to the content of the idea expressed, or
the identity of the speaker. The First Amendment functions to protect the "unfettered
interchange of ideas for the bringing about of political and social changes desired by the
people." The application of the Amendment is not intended to be limited. Resident
aliens and undocumented aliens with substantial ties to the United States belong to
the national community and, as such, enjoy the rights afforded by the First
Amendment.
The Supreme Court has repeatedly referred to a "profound national commitment to the
principle that debate on public issues should be uninhibited, robust, and wide-open and
that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on
government and public officials." The right to free speech serves not only to protect
the rights of the speaker but also to uphold the general public's interest in having access
to information within a free flowing marketplace of ideas. The Court has stressed the
importance of this fact, noting the power of discussion to expose falsehoods, and stating
that "those who won our independence had confidence in the power of free and fearless
reasoning and communication of ideas to discover and spread political and economic
truth."
In addition, the Supreme Court has warned against the "chilling effect" of government
restrictions on speech, particularly core political speech. The Court stated that "the
freedom of speech and of the press guaranteed by the Constitution embraces at the least
the liberty to discuss publicly and truthfully all matters of public concern without
previous restraint or fear of subsequent punishment."
A. Prosecution Under the Sedition Act of 1918
While First Amendment rights are significant, they are not absolute and are subject to
some limitations. These limitations are likely to be recognized in cases of threats to
national security generally, and in the context of the "War on Terrorism" specifically.
Federal prosecutors have acknowledged that they intend to prosecute certain persons
suspected of terrorist activities under the Sedition Act of 1918. That Act provides:
If two or more persons in any State or Territory, or in any place subject to the
jurisdiction of the United States, conspire to overthrow, put down, or to destroy
by force the Government of the United States, or to levy war against them, or to
oppose by force the authority thereof, or by force to prevent, hinder, or delay the
execution of any law of the United States, or by force to seize, take, or possess
any property of the United States contrary to the authority thereof, they shall
each be fined under this title or imprisoned not more than twenty years, or both.
Courts generally have held the law to be constitutional on its face as an appropriate
exercise of authority to protect national security, though historically it has been subject
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to abuse if applied broadly to otherwise protected activities, such as the right to free
speech. For example, in Skeffington v. Katzeff, the Sedition Act was applied to
determine that the Communist Party had been organized for the purpose of
overthrowing the U.S. government, based in part on statements in the Communist
Manifesto. Prosecutors have used such material to prosecute individuals under the
Sedition Act, rendering it a particularly dangerous tool by which government authorities
may chill speech that they consider to be contrary to government interests.
B. Exclusion of Non-Citizens Accused of "Endorsing" Terrorism
Parts of the Patriot Act explicitly allow determinations to be made based on an
individual's beliefs or speech. Section 411 of the Patriot Act amends the Immigration
and Nationality Act to prohibit the entry into the United States of any non-citizen who
represents a "foreign terrorist organization," is a member of "a political, social, or other
similar group whose public endorsement of acts undermines United States efforts to
reduce or eliminate terrorist activities," or supports or encourages others to support such
organizations. In addition, spouses and children of such non-citizens also are prohibited
from entry.
Attorney General Ashcroft justified this provision by explaining to the Senate that the
"ability of terrorists to move freely across borders and operate within the United States
is critical to their capacity to inflict damage on the citizens and facilities in the United
States." He then proposed to expand the grounds for removal of aliens for terrorism to
include material support to terrorist organizations. The Patriot Act itself goes even
further than the Attorney General's suggestions and threatens exclusion not only to
those who provide "material support" to such organizations but also to those who
provide "encouragement."
As of December 5, 2001, the State Department, at the Attorney General's request, had
designated thirty-nine groups as "terrorist organizations." Under section 411, any alien
who is deemed to have made statements in support of, or contributed funds to, such
organizations, or associated with alleged members thereof, is subject to deportation. As
in the case of prosecutions for "sedition," the United States has frequently deported
aliens upon suspicion that they support unpopular political positions. The additional
authority granted by the Patriot Act raises the very real specter of "blacklisting" as an
accepted immigration policy, reminiscent of McCarthyism in the 1950s. This activity
could have a devastating effect on the First Amendment rights of Muslims in the United
States to practice their religion and support the Muslim faith.
C.
"Gagging" Businesses Subjected to Federal Searches
The Patriot Act also stifles the First Amendment rights of businesses. Section 215 of the
Act permits seizures from businesses, under the Foreign Intelligence Surveillance Act
("FISA"), of records and other tangible items, including computer systems, upon the
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Attorney General's certification that the seizure is in furtherance of "an investigation to
protect against international terrorism or clandestine intelligence activities." The Patriot
Act further prohibits persons from disclosing that they have any knowledge of such
seizures. In other words, the owners and officers of the business are gagged from
disclosing that they have been the subject of an FBI search and seizure, presumably
including disclosures to the media. Moreover, the court issuing the subpoena is
prohibited from disclosing the purpose of the order.
D. The Attorney General's View of Civil Libertarians Who Oppose Him
In his recent testimony before the Senate, the Attorney General has demonstrated a
willingness to reprimand civil libertarians who have called into question the Bush
Administration's commitment to civil rights in the wake of the terrorist attacks.
Employing rhetoric reminiscent of McCarthy-era labeling of critics as "un-American"
and "unpatriotic," Ashcroft stated that critics have made "bold declarations of so-called
fact" that turned out to be vague conjecture. He continued his counter-criticism by
stating that:
Charges of "kangaroo courts" and "shredding the Constitution" give new
meaning to the term, "the fog of war." We need honest, reasoned debate; not
fearmongering ... . To those who scare peace-loving people with phantoms of
lost liberty; my message is this: Your tactics only aid terrorists - for they erode
our national unity and diminish our resolve. They give ammunition to America's
enemies, and pause to America's friends. They encourage people of good will to
remain silent in the face of evil.
Coupled with the Administration's rather facile dismissal of fundamental First
Amendment freedoms, such as the rights to free speech, free association without
monitoring, and the freedom to speak to the press about perceived abuses of the
subpoena power, the Attorney General's statements demonstrate an extreme
insensitivity to the fundamental American right to dissent without fear of retaliation.
III. The Fourth Amendment Freedom from Unreasonable Search and Seizure
The Patriot Act allows officials to sidestep the Fourth Amendment by validating the
wholesale disregard of the historic constitutional protections of notice, probable cause,
and proportionality. The Act exemplifies what Justice William O. Douglas called
"powerful hydraulic pressures ... that ... water down constitutional guarantees" and give
the police more power than the magistrate.
The Fourth Amendment protects Americans from unreasonable searches and seizures.
The Supreme Court has frequently expressed that the purpose of this Amendment is "to
prevent arbitrary and oppressive interference by enforcement officials with the privacy
and personal security of individuals." The Court also has noted that the purpose of the
Fourth Amendment is to let a "neutral and detached" judge decide when a search or
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seizure is appropriate as opposed to a potentially biased "officer engaged in the often
competitive enterprise of ferreting out crime."
The Court has noted that the amendment functions differently from other constitutional
protections in the criminal justice process in that a violation of the Fourth Amendment
occurs as soon as there has been an unreasonable search or seizure, regardless of
whether the evidence is ever used in a criminal proceeding. However, since the
exclusion of evidence seized in a subsequent criminal proceeding is the only remedy
ordinarily available for such violations, the mass of Fourth Amendment violations go
undisclosed and unredressed.
In view of this, the Supreme Court has frequently decided that, in order to prevent
encroachment upon Fourth Amendment rights, the Amendment should be given a
liberal construction. Thus, while proper criminal investigation requires that police have
the authority to investigate suspect activity thoroughly and disarm dangerous citizens,
the Court has always maintained that "the scope of the search must be "strictly tied to
and justified by' the circumstances which rendered its initiation permissible." Indeed,
courts will scrutinize the manner in which the search or seizure was conducted as much
as they do its initial justification.
A. Expansion of Searches Under the Foreign Intelligence Surveillance Act
One of the most dramatic interferences with privacy under the Fourth Amendment
comes through the monitoring of communications between individuals. Law
enforcement authority to conduct electronic surveillance and intelligence arises
predominantly from two federal statutes. The Foreign Intelligence Surveillance Act
("FISA") allows wiretapping of citizens as well as resident aliens in the United States
upon a showing of probable cause that the target is a "foreign power" or an "agent of a
foreign power." The FISA court consists of eleven federal judges appointed by the
Chief Justice of the Supreme Court. It hears surveillance requests on an expedited basis.
Section 218 of the Patriot Act is, thus, critically significant. It amends FISA to provide
that "foreign intelligence" need not be the purpose of investigations seeking orders
under the Act, but merely a "significant purpose." The amendment applies both to FISA
electronic surveillance warrants and FISA warrants for physical searches of property.
This greatly expands the power of federal authorities to apply the relatively loose
standards of FISA to investigations of both U.S. citizens and residents that only
tangentially touch on national security.
The FISA court recently broke with its traditional secrecy to publicly issue its May 17,
2002 Memorandum Opinion denying the Justice Department the authority to broaden
information sharing with the Criminal Division of the Justice Department. The FISA
court refused to approve Justice's proposed "minimization procedures," which
govern the handling and reduction to usable form of raw data obtained in foreign
intelligence investigations, and its proposed "wall" procedures, which establish
standards for ensuring that information obtained via FISA procedures is not routinely
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shared with criminal prosecutors. The FISA court found that the proposed revisions,
which would have allowed sharing of raw FISA data with criminal investigators and
prosecutors, extensive consultation with and reporting to prosecutors of FISA
information and coordination with prosecutors regarding FISA surveillance gathering,
amounted to giving criminal prosecutors "a significant role directing FISA surveillances
and searches from start to finish in counterintelligence cases having overlapping
intelligence and criminal investigations or interests, guiding them to criminal
prosecution." The court suggested that the proposed procedures were "designed to
amend the law and substitute the FISA for Title III electronic surveillances and [Fed. R.
Crim. Proc.] Rule 41 searches," and expressed its concern that Justice had adopted this
tactic "because the government is unable to meet the substantive requirements of these
law enforcement tools, or because their administrative burdens are too onerous." The
FISA court noted but declined to address the Attorney General's overall position that the
Patriot Act amendments to FISA mean that FISA now can "be used primarily for a law
enforcement purpose, so long as a significant foreign intelligence purpose remains."
The FISA appellate court, the U.S. Foreign Intelligence Surveillance Court of Review,
met for the first time in its history on September 9, 2002, to hear the Justice
Department's request for a review of the FISA court's decision. The FISA review court's
decision is pending, but it is not known whether the court will make its ruling public.
B. Sections 206 and 207: Roving FISA Wiretaps
The expansion of the definition of those subjected to surveillance further undercuts
Fourth Amendment privacy. Section 206 of the Patriot Act amends FISA to allow the
imposition of the FISA wiretap warrant against unspecified persons, rather than specific
communications providers, thus allowing federal agents to apply FISA wiretaps to any
provider of communications services without geographical limitation. The FISA court is
required to find that the actions of the target of the wiretap may thwart the identification
of a specified provider. Section 207 of the Patriot Act increases the time period for
FISA surveillance warrants (1) from 90 to 120 days for a wiretap order, and (2) from 45
to 90 days for a physical search, unless against an "agent of a foreign power," in which
case the maximum is 120 days. Attorney General Ashcroft justified this "roving
surveillance authority" by explaining that, because tracking terrorist activity is so time
sensitive, Americans could be harmed if law enforcement had to take the time to get an
additional court order when tracking suspects into new jurisdictions.
This provision is problematic in that it distorts two extremely important checks in the
legal system that historically have provided a measure of accountability for the validity
of a warrant. First, the amendment allows the issuance of so-called "blank warrants," by
which the parties required to respond to the order need not be listed on the face of the
document. This places such communications providers in the position of having to
accept the validity of the warrant and its application to them virtually without question
(although the section does permit a provider to inquire with the Attorney General as to
who, through his various agents, obtained the order in the first place, whether or not the
order is valid).
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Second, the order may not have been issued in the responding party's jurisdiction,
creating hindrances of geography and expense for a party that desires to challenge the
order in court.
C. Sections 214 and 216: FISA Pen Register and "Trap and Trace" Orders
The capabilities of registering communications have created a greater challenge to
privacy protection. Section 214 expands the pen register and trap and trace orders
available under FISA to include any investigations "to obtain foreign intelligence
information not concerning a United States person or to protect against international
terrorism or clandestine intelligence activities." A pen register is a device that registers
and records all telephone or Internet service provider numbers dialed by a phone for
outgoing communications. A trap and trace device similarly registers numbers of
telephones dialing in. FISA orders are not based on a probable cause or reasonable
suspicion requirement, but on "certification" that the information sought is related to the
professed law enforcement purpose. This is done on an ex parte basis, without notice to
the subject of the surveillance.
Section 216 expands the range of FISA pen register and trap and trace authority to
"anywhere in the United States." Formerly, the order was limited to the jurisdiction of
the court and to a particular communications provider or location. Now, the order
follows the FBI and the suspect anywhere. Like the roving surveillance powers, this
raises concerns relating to identification of the party charged and the practical ability to
challenge the order.
These expanded powers to monitor telecommunications are particularly prone to abuse
in the Internet age, since pen register and trap and trace orders now disclose not only
standard telephone numbers called by or dialing in to a subject, but also Internet URLs
and dedicated lines for data transmission. The ability to monitor Internet sites visited by
the subject of a search, in the absence of a showing of probable cause or even
reasonable suspicion, is an unprecedented expansion of federal surveillance powers.
D. Section 215: Business Records Seizures Allowed Under FISA
Section 215 expands the business records seizures available under a FISA order to
allow law enforcement officials to obtain business records and tangible things (e.g.,
computers and disks) upon a similar ex parte rubber stamp order. In addition, the Act
states that, "no person shall disclose to any other person ... that the Federal Bureau of
Investigation has sought or obtained tangible things under this section." Therefore, the
business is gagged from disclosing that it has been the subject of an FBI search and
seizure, including to the media.
E. Sections 201 and 202: Expanding the Scope of the Wiretap Act
The second major federal surveillance statute, the Wiretap Act of 1968, sometimes
referred to as "Title III," also has been considerably expanded by the Patriot Act. The
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Wiretap Act imposes a much higher hurdle even than is required (at least in theory) to
obtain a FISA order. It ordinarily requires a court order based upon an affidavit
establishing probable cause that a crime has been or is about to be committed and that
the search will turn up evidence thereof. The Patriot Act, however, amends the Wiretap
Act to allow any investigative or law enforcement officer or government attorney to
obtain foreign intelligence information that relates to the ability of the United States
to protect against terrorism.
The protections afforded by the Federal Wiretap Act of 1968 were intended to exceed
those guaranteed by the Fourth Amendment. In order to receive constitutional
protection for a communication under the Fourth Amendment, a subject's expectation of
privacy must be one that society is willing to recognize and one that the subject has
taken reasonable precautions to protect. One year after the Supreme Court's seminal
Fourth Amendment right of privacy case, Katz v. United States, Congress passed the
Wiretap Act specifically to address the electronic interception of oral communications.
Nothing in the Act's history, language, or definitions requires that the subjects of a
wiretap take precautions to avoid being overheard or recorded. The Act presumes that
the oral communication on which the government is eavesdropping is private. Further,
the Supreme Court has declared that the Fourth Amendment itself "does not permit the
use of warrantless wiretaps [even] in cases involving domestic threats to the national
security."
In spite of this purportedly high standard, wiretap orders are virtually never denied.
Between 1996 and 2000, of 6,207 reported wiretap requests by federal and state
agencies, only three were denied, an approval rate of over 99.9%. Despite the apparent
lack of judicial checks on the availability of wiretap orders before the passage of the
Patriot Act, the Act expands their availability even further. Sections 201 and 202 of the
Patriot Act amend the Wiretap Act to allow the FBI to obtain wiretap warrants for
"terrorism" investigations, "chemical weapons" investigations, or "computer fraud and
abuse" investigations. This expands the federal government's wiretap authority into the
broad, as-yet-undefined area of "terrorism" investigations and investigations related to
computer use.
F. Section 203b: Information Disclosed to CIA and Other Intelligence Agencies
Section 203b of the Patriot Act employs the same expanded definition of "foreign
intelligence information" used in section 203a, which permits grand jury information
sharing, to allow sharing between federal agencies of any information derived from
wire, oral, or electronic communications intercepted pursuant to the Wiretap Act, where
contents of such communications include "foreign intelligence information." The effect
is to allow sharing of wiretap information with any federal agency, including the CIA
and INS, whereas previously such sharing had to be related to the same investigation
that initially gave rise to the wiretap. This new provision is an important component of
the Justice Department's desire to build a general federal database of all criminal
information.
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G. Sections 209 and 210: Voice Mail, Internet, and Telephone Monitoring
Section 209 amends the Wiretap Act to allow wiretaps of voice mail messaging
systems. Under prior law, stored voice mail messages fell under the Title III category of
"wire communications," meaning that messages stored by a service provider could only
be seized pursuant to the higher standards applicable to a wiretap order. This placed
voice mail in the same category as a real-time telephone or Internet communication
between two parties.
The Patriot Act incorporates "wire communication" into the definition of an "electronic
communications system," effectively permitting access to such messages via a standard
search warrant, as if a voice mail message were merely a documentary record.
However, an individual's constitutionally recognized expectation of privacy in his or
her message is not diminished by the fact that the message is stored temporarily in a
voice messaging system before being retrieved by the recipient. Consequently, this
provision of the Patriot Act is constitutionally suspect under the Fourth Amendment.
Section 210 allows federal law enforcement officials to use an "administrative
subpoena" to obtain telephone or Internet/e-mail service provider records of customer
names, addresses, telephone connection records, including time and duration, length of
service, and source of payment, including credit card or bank account numbers. The
amendment added time, duration, and source of payment to the information obtainable.
Now, federal authorities possess the power to access easily a suspect's financial
information through his or her telephone number.
H. Section 213: "Sneak and Peek" Warrants
Notice of the execution of a warrant has long been held to be an important component
of the "reasonableness" of a search under the Fourth Amendment. The Supreme Court
has held that a search or seizure of a dwelling may be constitutionally defective if police
officers enter without prior announcement. This requirement is codified in the federal
criminal procedure statutes, which allow the subject of the warrant an opportunity to
challenge the lawful authority of the warrant or to prevent its defective execution, such
as when the wrong address is targeted or the subject no longer resides at the address. A
legion of tragic incidents resulting from execution of "no-knock" warrants demonstrate
the potential dangers inherent in serving such warrants on innocent victims.
In spite of the Supreme Court's cautions and the statutory mandate for the "knock and
announce" protocol, section 213 of the Patriot Act permits federal law enforcement
officials to delay giving notice of the execution of a search warrant to the subject of the
warrant, even until after it has been executed, if notification may have an adverse result.
Authority for the issuance of search warrants is derived from two statutes: 18 U.S.C.
3103, which implements the standards for issuing warrants set out in Federal Rule of
Criminal Procedure 41 and 18 U.S.C. 3103a, a "catchall" provision that provides
additional grounds for the issuance of a warrant "to search for and seize any property
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that constitutes evidence of a criminal offense in violation of the laws of the United
States." Section 213 amends the latter "catchall" provision, adding a new subsection (b),
which provides that the requisite notice of the issuance of any warrant (under any
provision of law) may be delayed if the court has reasonable cause to believe that the
immediate notification of execution of the warrant will have an adverse effect. The
warrant need only provide for giving notice "within a reasonable period of its
execution," and the period may be extended for "good cause."
Furthermore, while section 213 stipulates that warrants issued under the delayed notice
provision prohibit the seizure of tangible property, communications, or electronic data,
such as computer equipment, mail, or voice mail, this requirement may be waived if the
court finds "reasonable necessity for the seizure." Consequently, a person whose home
has been the subject of a search and whose computer equipment, mail, and other
sensitive items have been seized may find out about it through a letter in the mail weeks
or months later.
Moreover, the definition of "adverse result" is borrowed from another provision of the
code that permits relaxed notification requirements in the context of a court order or
subpoena for stored e-mail or voice mail data, not the search of a residence, which has
always been held to the highest standard of protection under the Fourth Amendment.
That provision includes the following as "adverse results" justifying delayed notice:
(A) endangering the life or physical safety of an individual;
(B) flight from prosecution;
(C) destruction of or tampering with evidence;
(D) intimidation of potential witnesses; or
(E) otherwise seriously jeopardizing an investigation or unduly delaying a trial.
The phrase "otherwise seriously jeopardizing an investigation" injects an inherently
subjective criterion into the standard, permitting law enforcement authorities and courts
broad authority to expand the number of cases involving delayed notice.
IV. The Fifth Amendment Right to Indictment by a Grand Jury
The new anti-terrorism legislation and regulations are problematic for the Fifth
Amendment right to grand jury indictment. The Fifth Amendment provides citizens the
right to indictment by jury for capital or other infamous crimes, "except in cases arising
in the land or naval forces, or in the Militia, when in actual service in time of War or
public danger ... ."
A. Ending the Historic Secrecy of Grand Juries
Section 203(a) of the Patriot Act amends Rule 6 of the Federal Rules of Criminal
Procedure relating to grand jury indictments and vitiates the historic secrecy of grand
juries. The transcripts and documents obtained by the grand jury process were
heretofore secret, allowing only for disclosure upon court order showing substantial
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need or challenge by defendants to the indictment. The reason for this protection
derived from the formidable power of the grand jury. Because the function of the grand
jury is inquisitorial, alone among American criminal justice authorities in this respect, it
is afforded broad-ranging authority to secure documents and witness testimony through
subpoena power, and the secrecy of its proceedings and the information obtained
thereby have historically been sacrosanct. A recent example of this power is seen in the
Monica Lewinsky investigation when the jury sitting under Judge Norma Hollowell
Johnson subpoenaed numerous White House officials to testify.
The Patriot Act may potentially distort the grand jury's function of maintaining secrecy.
The Supreme Court has noted that two objectives of grand jury secrecy have particular
application to the internal secrecy of subpoenaed documents and testimony. These
include the grand jury's goals (1) "to encourage free and untrammeled disclosures by
persons who have information with respect to the commission of crimes" and (2) "to
protect [the] innocent accused who is exonerated from disclosure of the fact that he has
been under investigation ... ." The Patriot Act may likely have the effect of discouraging
free disclosure because witnesses will know their information may be shared with a
wide range of law enforcement authorities. Also, the "innocent accused" will find his
private records disseminated widely among federal law enforcement agencies and
perhaps placed in a central databank of suspect information, despite his formal
exoneration, a phenomenon that flies in the face of the maxim "innocent until proven
guilty."
Abandoning traditional safeguards on the power of grand juries, new Federal Rule
6(e)(3)(c)(I)(V) allows disclosure of foreign intelligence, counterintelligence, or
"foreign intelligence information" to an array of federal officials "in order to
assist the official receiving that information in the performance of his official duties."
"Foreign intelligence information" is, in turn, defined broadly to include:
(A) information, whether or not concerning a United States person, that relates to the
ability of the United States to protect against
(i) actual or potential attack or other grave hostile acts of a foreign power or an
agent of a foreign power;
(ii) sabotage or international terrorism by a foreign power or an agent of a
foreign power; or
(iii) clandestine intelligence activities by an intelligence service or network of a
foreign power or by an agent of foreign power; or
(B) information, whether or not concerning a United States person, with respect to a
foreign power or foreign territory that relates to
(i) the national defense or the security of the United States; or
(ii) the conduct of the foreign affairs of the United States.
The non-restriction to "United States persons" means that information relating to any
person, citizen, non-citizen, or alien, can be the subject of grand jury information
sharing.
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B. Elimination of the Right to Indictment by Grand Jury for Non-Citizens Accused of
"Terrorism"
The constitutional right to indictment by a grand jury for any infamous crime has come
under fire in the "War on Terrorism." It would be entirely obviated by the application of
President Bush's Executive Order establishing military tribunals to accused alien
residents, as well as accused citizens.
V. The Sixth Amendment Right to Counsel
Many of the new regulations have undercut the Sixth Amendment right to counsel by
inhibiting both the ability to obtain counsel and the privacy that is afforded through the
attorney-client relationship. The Sixth Amendment guarantees citizens accused in
criminal proceedings "the assistance of counsel" for their defense.
A. Monitoring Attorney-Client Conversations
For the first time in modern history, federal authorities may now refuse to respect the
age-old, virtually absolute confidentiality enjoyed by a prisoner consulting with his or
her attorney. On October 30, 2001, the Justice Department unilaterally imposed a
requirement on federal correctional facilities that would allow the correspondence
and private conversations between prisoners and their counsel to be subjected to
monitoring in most situations. This rule was put into effect immediately by Attorney
General Ashcroft, without the usual protections of notice and public comment afforded
by the federal Administrative Procedures Act. The rule was posted in the Federal
Register on October 31, 2001, the day after it went into effect. Further, the rule is not
limited to alleged terrorists; rather, it extends to all incarcerated individuals. Under the
rule, communications or mail between prisoners and their attorneys may be monitored if
the Attorney General "has certified that reasonable suspicion exists to believe that an
inmate may use communications with attorneys or their agents to further or facilitate
acts of violence or terrorism."
Because the phrase "acts of violence" is so broad and discretion is vested in the
Attorney General to certify which prisoners are subject to the rule, no protections exist
to ensure that the monitoring will not rapidly expand to include a large percentage of
federal prisoners. As the American Bar Association has noted, this monitoring violates
the attorney-client privilege and is a serious infringement upon a suspect's Sixth
Amendment right to counsel. Prior to the issuance of this regulation, a judicial order
could permit monitoring of attorney-client communications only upon a showing that
the government had probable cause to believe that criminal activity was occurring. The
monitoring places an attorney in the position of either violating the ethical obligation to
maintain confidentiality of communications with the client or foregoing such
communications altogether, thereby seriously jeopardizing the ability to obtain or
sustain legal representation.
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B. Refusing Suspects Access to Counsel and Discouraging Detainees from Obtaining
Legal Counsel
The Justice Department has detained over 1,000 people in its investigation into the
September 11th attacks. Reportedly, some of these detainees have been discouraged
from obtaining legal counsel or have had access to counsel blocked outright. For
example, San Antonio physician Albador Al-Hazmi was held incommunicado for days
as a material witness, despite his lawyer's efforts to gain access to him. Historically,
courts have placed great importance on proper attorney-client relations in determining
the legitimacy of things like evidence and confessions. The tactics in the Patriot Act
which sidestep this principle are a clear violation of the Sixth Amendment.
VI. Military Tribunals: The Sixth Amendment Right to Trial by Jury
President Bush's proposal to try suspected terrorists in military tribunals undermines the
constitutional guarantee of the right to trial by jury. The Sixth Amendment provides the
accused in a criminal prosecution with the right to receive "a speedy and public trial, by
an impartial jury of the state and district wherein the crime shall have been committed
... and to be informed of the nature and cause of the accusation; to be confronted with
the witnesses against him; to have compulsory process for obtaining witnesses in his
favor."
On November 13, 2001, President Bush issued an Executive Order suspending the
rights of indictment, trial by jury, appellate relief, and habeas corpus for all non-citizen
persons accused of aiding or abetting terrorists. The Order, issued pursuant to the
President's authority as Commander in Chief of the Armed Forces, stated that the
terrorist attacks had created an armed conflict necessitating the use of the military. The
President declared that, in order to "protect the United States and its citizens, and for the
effective conduct of military operations and prevention of terrorist attacks, it is
necessary for individuals subject to this Order ... to be detained, and, when tried, to be
tried for violations of the laws of war and other applicable laws" in military tribunals.
The Order allows the President to subject non-U.S. citizens to this order if he
determines and states in writing that there is reason to believe that the individual (1) is
or was a member of al Qaida, (2) has "engaged in, aided or abetted, or conspired to
commit, acts of international terrorism, or acts in preparation therefore, that have
caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on
the United States, its citizens, national security, foreign policy, or economy," or (3) has
harbored any of the aforementioned individuals knowingly and that the best interest of
the United States is served by applying the Order to such a person.
The Order directs the Secretary of Defense to promulgate orders and regulations for the
appointment and administration of the military commissions that will try suspected
terrorists. However, the Order declares that, because of the dangerous nature of
international terrorism, these commissions will not "apply the principles of law or the
rules of evidence that are used in normal criminal cases." The regulations only permit
admission of evidence that the Secretary deems not to violate national security.
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Therefore, the military will sit as both the adjudicator of fact and arbiter of law. In
addition, these tribunals may impose the death penalty, even though only a two-third
majority vote, instead of the unanimity mandated in civilian trials, is required for a
sentence.
Suspects tried under this Order will be under the exclusive jurisdiction of the military
tribunals. They will not be afforded habeas corpus relief nor will they be permitted to
appeal to any court, either within the United States or internationally. Only the
Secretary of Defense will be able to review final decisions of the military commissions.
While the Bush Administration's draft procedures for these military tribunals reportedly
address some of the concerns raised by civil libertarians, including allowing for
unanimous verdicts in death penalty cases and opening trials to the public, the final
regulations have not yet been adopted. Until they are finalized, the language of the
Executive Order controls the interpretation of the procedures to be followed. Further,
certain reported provisions of the draft procedures that run counter to the Executive
Order, such as the requirement for unanimity in death penalty cases, may require an
amendment to the Order itself, which might be difficult to obtain. Moreover, while the
reported draft procedures would permit review of tribunal decisions by "an appeals
body," that body, according to the reports, would not be a court of law, but perhaps a
separate military review panel.
The U.S. Constitution provides that all crimes except for impeachment shall be tried by
a jury in the state where the crimes have been committed or, when the crime is not
committed within any state, in a place that is selected by Congress.
The military tribunal Order, by abolishing the right to trial by jury and reserving the
power to the Executive Branch to determine when, where, and under what conditions
such tribunals will be conducted, represents arguably the most drastic curtailment of the
Sixth Amendment rights of the criminally accused since the Second World War.
Courts have held that the authority vested in Congress "to make rules for the
government and regulation of the land and naval forces" does not grant it the power to
try civilians in military tribunals. Thus, the Executive Branch has sought to create the
military tribunals itself. The chief authority upon which the Department of Justice relies
for the Executive Branch's purported authority to impose trial by military tribunal is the
World War II-era Supreme Court case of Ex parte Quirin, a case meriting extensive
review given the framework it has laid for assessing the post-September 11th tribunals.
In a special session called by Chief Justice Harlan Stone, the Supreme Court considered
the habeas corpus petitions of eight German citizens who had landed by submarine on
East Coast ports in New York and Florida, with orders to destroy American military
manufacturing plants. They were wearing German military uniforms or military items
when they landed and were under the pay and orders of the German High Command.
The FBI arrested the men in Chicago and New York.
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By order as Commander in Chief on July 2, 1942, President Franklin Delano Roosevelt
appointed a military commission and directed it to try the subjects for offenses against
the law of war and the Articles of War. On the same day, the President further
proclaimed that:
all persons who are subjects, citizens or residents of any nation at war with the
United States or who give obedience to or act under the direction of any such
nation, and who during time of war enter or attempt to enter the United States ...
through coastal or boundary defenses, and are charged with committing or
attempting or preparing to commit sabotage, espionage, hostile or warlike acts,
or violations of the law of war, shall be subject to the law of war and to the
jurisdiction of military tribunals ... .
Since Roosevelt was held to be acting within his executive power pursuant to Congress'
declaration of war under Article 15 of the Articles of War, the Court did not determine
"to what extent the President as Commander in Chief has constitutional power to create
military commissions without the support of Congressional legislation." Thus, the case
does not directly address the precise issue that arises under the current Executive Order,
leaving open the question of the legitimacy of the currently proposed military tribunals
in a time of undeclared war.
The Court in Ex parte Quirin did battle with the general issue of the president's
authority to create military tribunals. The petitioners' main contention was that the
President lacked constitutional or statutory authority to order a military tribunal and that
they were entitled to be tried in civilian courts and afforded the protections of the Fifth
and Sixth Amendments. In its analysis, the Court first reviewed the Civil War case of
Ex parte Milligan, which arose out of President Lincoln's suspension of habeas corpus
during the Civil War. Milligan, a civilian resident of the Union state of Indiana, was
tried and convicted by a military tribunal for seditious assistance to the Confederacy
and sought habeas relief after receiving his sentence of hanging. The Supreme Court
emphasized the importance of the issue of Milligan's right to habeas relief, declaring
that it "involves the very framework of the government and the fundamental principles
of American liberty." Despite the issuance of the presidential proclamation, which
suspended the writ under certain circumstances, the Court obtained jurisdiction by
congressional authorization to review denial of the writ to civilian citizens of Northern
states.
In Milligan, Justice David Davis wrote about the pressing concern before the Court,
observing that, "it is the birthright of every American citizen when charged with crime,
to be tried and punished according to law ... . By the protection of the law human rights
are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the
clamor of an excited people." He noted that, unless law justified military trial, the Court
had the duty to nullify the acts of the military. He stressed that a decision regarding the
existence of justifiable law was not to be made based on precedent and argument, but
rather was to be determined by the Constitution and the laws authorized by it. The Court
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clarified that, if the protections of due process, grand jury indictment, trial by jury, and
habeas corpus were available to Milligan, they unquestionably controlled the case.
The Court determined that the military tribunal did not have the authority to try
Milligan because Congress's constitutional Article III, section 1 authority was not broad
enough to grant it, and the President's power, under the separation of powers doctrine,
allowed him only the right to execute laws, not make them. The Court further explained
that, because federal courts of Indiana were trying cases during the Civil War, and the
acts alleged were the subject of congressionally prescribed criminal penalties, the
government had no reason to assume that a federal court would not sentence Milligan, if
guilty, to an appropriate punishment. Even if an unrestrained Milligan presented danger
because he "conspired against the government, afforded aid and comfort to rebels, and
incited the people to insurrection," the court was not without remedy. Legally, he could
have been arrested and confined so that he could not cause further harm, after which his
case would have gone to the grand jury and possibly to trial.
The Court further held that Milligan's constitutional right to trial by jury had been
violated. This right, which is cherished in a free country, is granted to everyone accused
of a crime who is not actually serving in the military or a part of the army or navy. The
Framers intended the Sixth Amendment right to trial by jury in criminal cases to be
enjoyed by all persons who were included in the right to indictment or presentment by
grand jury via the Fifth Amendment. Martial law could not be imposed, the Court
warned, absent an "actual and present" necessity arising from a real invasion, "such as
effectively closes the courts and deposes the civil administration."
The Supreme Court in Ex parte Quirin construed Ex parte Milligan not to reach the
issue of military tribunals established to try violations of the "law of war." Furthermore,
Congress had not delineated by statute the particular offenses within the scope of that
term. The Court noted that the law of war, created by universal agreements and practice,
"draws a distinction between the armed forces and the peaceful populations of
belligerent nations and also between those who are lawful and unlawful combatants."
The Court stated that spies and saboteurs are examples of such "unlawful combatants"
who are subject to trial and punishment by military tribunals. The Quirin Court
restricted Milligan to its factual predicate and concluded that the law of war does not
apply to non-military citizens.
It is important to note, moreover, that the Court's approval in Ex parte Quirin of this
exercise of the Articles of War appears to have been predicated, at least in part, upon
the formal declaration of war by President Roosevelt on the Axis powers, making it
distinguishable from the situation that existed in Milligan. The Court defined the action,
following the President's proclamation triggering the law of war, as an exercise of the
congressional authority "to define and punish offenses against the law of nations by
sanctioning, within constitutional limitations, the jurisdiction of military commissions
to try persons for offenses which, according to the rules and precepts of the law of
nations, and more particularly the law of war, are cognizable by such tribunals."
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The application of Milligan and Quirin to President Bush's Executive Order is evident.
Congress has not restricted the writ of habeas corpus for persons suspected of engaging
in or abetting the terrorist attacks, as it arguably has limited authority to do under
Article III, section 1 of the Constitution. The Article III power to "ordain and establish"
inferior courts has generally been held to grant Congress the authority to circumscribe
the jurisdictional limits of inferior federal courts. The broad reach of the Executive
Order, ostensibly drawing in all persons who are non-citizens and whom the President
determines have aided or abetted terrorist acts, includes resident legal and
undocumented aliens. The Supreme Court has found that such persons are entitled to all
of the protections afforded to "persons" via the Fifth and Sixth Amendments, including
the right to indictment by a grand jury, the right to trial by jury, the right to counsel, and
the right to confront witnesses.
Although the writ of habeas corpus is often referred to as a "privilege," its availability
is a matter of constitutional import, as Article I of the Constitution provides that "the
privilege of the writ of habeas corpus shall not be suspended, unless when in cases of
rebellion or invasion the public safety may require it." The Milligan Court appears to
have implicitly considered the Civil War one such appropriate case. It is doubtful,
however, that the attacks of September 11th and the prospect of further terrorism could
be construed to amount to cases of rebellion or invasion requiring suspension of the
writ. Consequently, any enforcement of the Executive Order to impose trial by military
tribunal on any person other than a non-United States national outside the borders of the
country will not pass constitutional muster.
VII. The Fifth Amendment Right to Due Process of Law
Certain anti-terrorism proposals jeopardize the individual right to receive due process.
The Fifth Amendment states that, "no person shall be ... deprived of life, liberty, or
property, without due process of law."
A. Section 412: Indefinite Detention of Non-Citizens Without Due Process
The Patriot Act creates challenges to protected Fifth Amendment liberty. Section 412 of
the Act requires the Attorney General to take into custody any alien whom he certifies
is subject to the preceding section 411, or, in other words, any alien that he has
"reasonable grounds to believe" is "engaged in any other activity that endangers the
national security of the United States." He may hold the alien for seven days, at which
point he must either charge him criminally or initiate the process of deportation. Habeas
corpus review is the only court review available to such a detainee. While a habeas
petition may be initiated in the Supreme Court, to any justice of the Supreme Court, the
District of Columbia Court of Appeals, or any district court, only the D.C. Court of
Appeals may review an appeal from a circuit or federal district court judge.
If an immigrant is detained for purposes related to immigration under this provision,
there is no statutory or constitutional authority to control the length of the detention.
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This has frequently resulted in the indefinite detention of non-resident foreigners in U.S.
detention facilities, and oftentimes prisons, with no remedy.
B. Section 106: Seizure of Assets Without Due Process
The Patriot Act also invokes the issue of property protection under the Fifth
Amendment. Title I, section 106 of the Patriot Act greatly increases presidential
authority over the property or assets of foreign persons or organizations by amending
section 203 of the International Emergency Powers Act. The section grants the Chief
Executive broad new powers in the time of armed hostilities or attack by foreign actors
to "confiscate any property, subject to the jurisdiction of the United States, of any
foreign person, foreign organization, or foreign country that he determines has
planned, authorized, aided, or engaged in such hostilities or attacks against the United
States." The section further allows the President to direct other agencies or individuals
to use or transfer such property as he sees fit.
The Attorney General explained the perceived need for this provision, stating that:
law enforcement must be able to "follow the money' in order to identify and
neutralize terrorist networks. We need the capacity for more than a freeze. We
must be able to seize. Consistent with the President's action yesterday [seizing
aspects of identified groups and individuals allegedly associated with al-Qaida],
our proposal gives law enforcement the ability to seize their terrorist assets.
As discussed above, however, temporary and permanent aliens in the United States
enjoy the Fifth Amendment right to due process, a right which encompasses the right to
hold personal and real property. The proposition that the President may unilaterally
seize and dispose of such assets with no meaningful judicial review is constitutionally
untenable.
President Bush apparently has used section 106 of the Patriot Act to order the seizure of
the bank accounts and property of suspected terrorist organizations and individuals
associated with them. It is important to note that the President may invoke the law any
time the United States is engaged in foreign hostilities, or any time the United States is
attacked by a foreign national. The terms of the statute do not grant judicial review for
these seizures, and any judicial review of a determination based on classified
information will be conducted ex parte. Although judicial review may be available
under section 316 of the Patriot Act, that provision only grants the owners of
confiscated property the right to file federal lawsuits challenging the determination that
the property was an asset of suspected terrorists. That section, moreover, allows for
suspension of the Federal Rules of Evidence if the court determines that compliance
with the Federal Rules could jeopardize national security interests. In other words,
the section allows for more secret evidence, a function which distorts the idea of a fair
trial. . .
VIII. The Constitutional Right to Privacy
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Provisions in the Patriot Act allowing for increased monitoring of financial transactions
and educational records threaten the right of privacy to which citizens are entitled. As
the Supreme Court has recognized, the common law has established that "specific
guarantees in the Bill of Rights have penumbras, formed by emanations from those
guarantees that help give them life and substance. Various guarantees create zones of
privacy."
A. Sections 355 and 356: Monitoring and Reporting on Citizen Financial Transactions
Sections 355 and 356, along with other provisions of Title III of the Patriot Act
(surnamed the "International Money Laundering and Anti-Terrorist Financing Act of
2001"), increase the monitoring and reporting obligations of citizens against other
citizens. Section 355 allows financial institutions to communicate and document their
suspicions concerning the involvement of current or former employees in "potentially
unlawful activity." Section 356 requires securities brokers and dealers to submit reports
documenting any suspicious activity or transactions as defined under 31 U.S.C. 5318
(1994)."
B. Section 358: Amending the Federal Privacy Statute to Allow Disclosure of Banking
Records for "Financial Analysis"
Section 358 of the Patriot Act amends the Right to Financial Privacy Act of 1978 n304
to allow law enforcement authorities to obtain financial data related to intelligence or
counterintelligence activities, investigations, or analysis in an effort to protect against
international terrorism. Thus, "financial analysis" is now a sufficient basis for federal
authorities to review citizen financial information. A similar amendment is applied to
the Fair Credit Reporting Act to require furnishing credit reports to federal law
enforcement agents who certify that they need the information for that purpose.
C. Section 507: Required Disclosure of Educational Records
Congress passed the Family Educational Rights and Privacy Act in 1974 to protect the
privacy rights of students and their parents with respect to their educational records. The
law was enacted with the congressional intent of ensuring that school district practices
resulting in unauthorized disclosures do "not invade the privacy of students or pose any
threat of psychological damage to them."
Previously, FERPA permitted disclosure of educational records to law enforcement
authorities pursuant to a subpoena, based upon probable cause and a sworn affidavit
demonstrating that the information sought was probative of a criminal investigation.
Section 507 of the Patriot Act amended FERPA to require automatic disclosure of
educational records to federal law enforcement authorities upon an ex parte court order
based only upon certification that the educational records may be relevant to an
investigation of domestic or international terrorism. This amendment makes disclosure
of educational records the rule, rather than the exception, permitting federal "sweeps" of
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the educational records of certain groups of persons, notably aliens residing in the
United States on student visas.
D. Building Biometric Databases of Citizens
Sections 405, 414, and 1008 of the Patriot Act require the Attorney General to explore
the feasibility of using "biometric identification systems," or fingerprinting, at U.S.
ports of entry, such as customs offices at airports and harbors. The provisions also allow
this identification to be used for issuing passports and visas, as well as other secure
information systems, such as bar code identifiers that will "interface" with other law
enforcement agencies to identify and detain individuals who may pose a threat to
national security.
Conclusion
The September 11th attacks have challenged American society in ways that are
unprecedented. A strong military and law enforcement response is necessary to answer
that challenge. But to view these acts of terrorism as principally a military strike for
strategic purposes, like the Japanese attack on Pearl Harbor, would be a mistake. The
extremists who perpetrated the attacks did not want to simply destroy American
landmarks of industry and government, they wanted to destroy America as America, to
demolish the foundations upon which American culture and freedom, and all they
represent to the world, are built. To set aside the lessons of over two hundred years of
American freedom, enshrined in the Declaration of Independence, as a commitment to
the truth that "All men are created equal [and] endowed by their Creator with certain
inalienable rights ... life, liberty and the pursuit of happiness," as politically or
practically inexpedient in a time of "war," would be to allow the extremists to win by
surrendering who we are as a nation. If the American people accept a form of police
statism in the name of a promise of personal security, that would be the greatest defeat
imaginable.
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Background Paper on Geneva Conventions and Persons Held by U.S. Forces
Human Rights Watch, January 29, 2002
Introduction
This background paper highlights the international law issues surrounding the status and
treatment of Taliban and al-Qaeda fighters from Afghanistan in U.S. custody. It cites
the need for a formal and individualized determination of prisoner of war status where
that status is in doubt. This paper also sets out international law requirements governing
prisoners of war and so-called "unlawful combatants," including humane treatment,
interrogation and prosecution.
Since the commencement of U.S. military operations in Afghanistan in October 2001,
thousands of persons have been detained by anti-Taliban Afghan forces and by U.S.
armed forces. Those held include both Taliban and al-Qaeda fighters. In addition to
Afghan nationals, many Pakistani nationals are reportedly among the detainees, as well
as smaller numbers of Saudis, Yemenis and others from Arab states, Uzbeks, Chechens
from Russia, Chinese, Europeans, and others.
Most of the captured combatants are in the custody of the new post-Taliban Afghan
authorities. The largest group, numbering several thousand, is being held in Afghan
custody at the large prison complex in Shiburghan, west of Mazar-i-Sharif in northern
Afghanistan. There are dozens of smaller Afghan-controlled prison facilities and ad-hoc
detention facilities scattered around Afghanistan, some relatively formal prisons
inherited by the new Afghan administration from the Taliban regime, while others are
basically lock-up facilities under the control of local warlords.
The U.S. military has been screening and interrogating detainees in Afghan custody in
order to identify persons whom the U.S. wants to prosecute or detain, or who may have
useful intelligence information (such as the whereabouts of Taliban or al-Qaeda leaders,
or knowledge about the inner workings of the al-Qaeda network). The U.S. has taken
custody of several hundred detainees held by Afghan forces, and has transferred them to
its own detention facilities: a U.S. military detention facility located outside Kandahar
and detention facilities in off-shore Navy ships such as the USS Peleliu. In addition,
U.S. military forces have also directly taken custody of persons while carrying out
military operations inside Afghanistan. In January the U.S. government began
transferring these persons from the detention facilities in the immediate theater of
conflict to a more permanent detention facility at the U.S. military base in Guantanamo
Bay, Cuba. According to the Defense Department on January 28, 482 prisoners are
being held by U.S. forces in Afghanistan and at Guantanamo Bay, about one-fifth of
whom are Saudi nationals.
1. International Law and the Treatment of Prisoners in an Armed Conflict
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The treatment of detainees in an armed conflict is governed by international
humanitarian law, also known as the laws of war. Most relevant are the four Geneva
Conventions of 1949, to which most states, including the United States and
Afghanistan, are party. (Two Additional Protocols to the Geneva Conventions, adopted
in 1977, have not been ratified by the United States, but many of their provisions are
considered to be indicative of customary international law.) The Geneva Conventions
set out a comprehensive legal framework aimed at protecting captured combatants and
civilians during armed conflict.
The protection and treatment of captured combatants during an international armed
conflict is detailed in the Third Geneva Convention relative to the Treatment of
Prisoners of War, which defines prisoners of war (POWs) and enumerates the
protections of POW status. Persons not entitled to POW status, including so-called
"unlawful combatants," are entitled to the protections provided under the Fourth Geneva
Convention relative to the Protection of Civilian Persons in Time of War. All detainees
fall somewhere within the protections of these two Conventions; according to the
authoritative Commentary to the Geneva Conventions of the International
Committee of the Red Cross (ICRC): "nobody in enemy hands can fall outside the law."
There are other international legal instruments outside the Geneva Conventions that also
affect the treatment of persons during armed conflict -- and after the conflict. While
some human rights standards can be derogated or limited during times of war or
national emergency, other human rights standards continue to apply in full force
at all times. Instruments relevant to the treatment of persons deprived of their liberty
detainees include Torture and other ill-treatment of detainees is prohibited as a matter of
customary law and treaty. Article 7 of the International Covenant on Civil and Political
Rights, and which the United States ratified in 1992, provides that "No one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment." Also in
force at all times is the Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishmentand the UN Standard Minimum Rules on the
Treatment of Prisoners to which the United States became a party in 1994.
2. Types of Prisoners under International Humanitarian Law
Under international humanitarian law, combatants captured during an international
armed conflict should be presumed to be POWs until determined otherwise. Specified
categories of combatants who "have fallen into the power of the enemy" are entitled to
POW status. These categories include members of the armed forces of a party to the
conflict, members of militia forces forming part of those armed forces, and inhabitants
of a non-occupied territory who take up arms openly to resist the invading forces. POW
status also applies to captured members of irregular forces who are under responsible
command; have a fixed distinctive sign (such as an insignia, uniform or other marking)
recognizable at a distance; carry arms openly; and conduct their operations in
accordance with the laws and customs of war.
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POWs receive the full protection of the Third Geneva Convention relative to the
Treatment of Prisoners of War. POWs may not be tried for the mere act of being
combatants, that is, for taking up arms against other combatants. However, they may be
prosecuted for the same offenses for which the forces of the detaining power could be
tried, including common crimes unrelated to the conflict, war crimes, and crimes
against humanity.
Captured combatants who are not entitled to POW status have been described as
"unlawful combatants" or "non-privileged combatants, " although neither term is found
in the Geneva Conventions. Such persons are still protected under the Geneva
Conventions, but under the provisions of the Fourth Geneva Convention relative to
the Protection of Civilian Persons in Time of War. This Convention also applies to
civilian non-combatants who are affected by the conflict and due special protections as
"protected persons."
3. Status Determination of Prisoners
Article 5 of the Third Geneva Convention states: "Should any doubt arise as to whether
persons, having committed a belligerent act and having fallen into the hands of the
enemy," belong to any of the categories for POWs, "such persons shall enjoy the
protection of the present Convention until such time as their status has been determined
by a competent tribunal."
No detainee can be without a legal status under the Conventions. According to the
ICRC Commentary:
Every person in enemy hands must have some status under international law: he is
either a prisoner of war and, as such, covered by the Third Convention, a civilian
covered by the Fourth Convention, [or] a member of the medical personnel of the armed
forces who is covered by the First Convention. There is no intermediate status; nobody
in enemy hands can fall outside the law.1
U.S. officials have endorsed the government's adherence to this principle.
In 1987, then-Deputy Legal Advisor to the U.S. State Department, Michael Matheson,
stated that:
We [the United States] do support the principle that, should any doubt arise as to
whether a person is entitled to combatant status, he be so treated until his status
has been determined by a competent tribunal, as well as the principle that if a
person who has fallen into the power of an adversary is not held as a prisoner of
war and is to be tried for an offense arising out of the hostilities, he should have
the right to assert his entitlement before a judicial tribunal and to have that
question adjudicated.3
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According to the U.S. military Judge Advocate General Handbook, the U.S. armed
forces used such tribunals in conflicts from Vietnam to the Gulf War:
"When doubt exists as to whether captured enemy personnel warrant POW
status, Art. 5 [Third Geneva] Tribunals must be convened. It is important that
judge advocates be prepared for such tribunals. During the Vietnam conflict, a
Directive established procedures for the conduct of Art. 5 Tribunal....[The
accompanying footnote states:] No Article 5 Tribunals were conducted in
Grenada or Panama, as all captured enemy personnel were repatriated as soon as
possible. In the Gulf War, Operation Desert Storm netted a large number of
persons thought to be [Enemy was conducted to verify the
status of the detainees. Upon determination that they were civilians who had
taken no part in hostilities, they were transferred to refugee camps. Whether the
tribunals were necessary as a matter of law is open to debate - the civilians had
not "committed a belligerent act," nor was their status "in doubt."4
Regulations issued by the four branches of the U.S. military in 1997 set out detailed
procedures for tribunals consisting of three commissioned officers to make
determinations of status where doubts arise in accordance with the Third Geneva
Convention. Under the 1997 U.S. military regulations, persons whose status is to be
determined shall: be advised of their rights at the beginning of their hearings; be
allowed to attend all open sessions and will be provided with an interpreter if necessary;
be allowed to call witnesses if reasonably available, and to question those witnesses
called by the tribunal; have a right to testify or otherwise address the Tribunal; and not
be compelled to testify before the Tribunal. According to the regulations, following the
hearing of testimony and the review of documents and other evidence, the Tribunal
shall determine the status of the subject of the proceeding in closed session by majority
vote. Preponderance of evidence shall be the standard used in reaching this
determination, and a written report of the tribunal decision is to be completed in
each case.
4. Determining the Status of Prisoners in the Afghanistan conflict
To date the United States has released little information on the persons captured in
Afghanistan, except to say they come from 25 countries. The United States has labeled
all persons in its custody captured in Afghanistan as "unlawful combatants," "battlefield
detainees," or "illegal combatants," and has indicated that while they may be treated in
accordance with the Geneva Conventions, there is no obligation that the United States
so treat them. For instance, U.S. Secretary of Defense Donald Rumsfeld stated on
January 11, 2001 that those held were "unlawful combatants" and that "unlawful
combatants do not have any rights under the Geneva Convention. We have indicated
that we do plan to, for the most part, treat them in a manner that is reasonably consistent
with the Geneva Conventions, to the extent they are appropriate."
The U.S. position is inconsistent with the Geneva Conventions on several counts. First,
the U.S. may not classify as a group all detainees from the Afghan conflict as not being
151
entitled to POW status; such a determination must be made on an individual basis by a
competent tribunal. Second, there is a presumption that a captured combatant is a POW
unless determined otherwise. Third, it is incorrect to assert that only POWs are
protected by the Geneva Conventions-all persons apprehended in the context of an
international armed conflict, including the types of prisoners the U.S. has labeled as
"unlawful combatants," receive some level of protection under the Geneva Conventions.
In a press conference on January 22, Defense Secretary Rumsfeld seemed to backtrack
in part from his earlier statements. He stated that "whatever one may conclude as to how
the Geneva Convention may or may not apply," the United States is treating the
detainees humanely. He continued: "Lawyers must sort through the legal issues with
respect to unlawful combatants and whether or not the Taliban should be considered
what the documents apparently refer to as a, quote, `high contracting party,' unquote, or,
in plain English, I think, a government. The Department of Defense will leave those
issues to them."
More recently, the Bush Administration has suggested that the Geneva Conventions do
not apply to a war against terrorism, that the government can decide that captured
combatants are not POWs with a determination before a competent tribunal, and that
treating the detainees as POWs would prevent them from being questioned for alleged
criminal offenses.
Such statements from the U.S. government suggest that the U.S. government will apply
its own standards to the detainees, determine its own standard of protection outside the
Geneva system, picking and choosing those provisions of the Geneva Conventions it
wishes to apply. The United States is ignoring important and relevant international
standards, and is instead determining aiming toots own standard of protection outside
the Geneva system apply its own standards to the detainees.. This also undermines long-
time efforts by the U.S. military to incorporate the Geneva Conventions into the
operations of the armed forces through its training programs and institutions.
Defense Secretary Rumsfeld has mischaracterized the legal situation in public
statements. For instance, on January 22, he stated that the drafters of the Geneva
Conventions "felt that a higher standard should be provided and given to people who, in
fact, wore uniforms; who, in fact, were fighting on behalf of a legitimate government;
who did carry their weapons openly and who did do those things that men and women
in the United States armed forces do as a matter of course - wear insignia indicating
who they are.‖ Some general comments about their status can nonetheless be made
Members of the Taliban armed forces or militia groups that formed part of the Taliban
armed forces are likely to be entitled to POW status. It would not matter for determining
POW status whether these soldiers were Afghans or foreigners. In fact, the U.S.
government has asserted that members of the Taliban armed forces are not entitled to
POW status because the Taliban was not the recognized government of Afghanistan.
This is contrary to both international law and long-standing U.S. practice. The Geneva
Conventions do not require a formal state of war between two state parties to be
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applicable; rather, it is only necessary that there be "armed conflict," which does not
require formal recognition
of one state by another. The Geneva Conventions would have minimal or no legal effect
if states could simply escape their obligations by declaring that an adversary state was
not the legitimate government of the country. During the Korean War, the United States
considered prisoners from the People's Republic of China (PRC) to be POWs under the
Geneva Conventions, although neither the United Nations nor the United States
recognized the PRC government at the time.
Al-Qaeda fighters, unless they can show that they were part of the Taliban armed
forces, must meet the specific standards for POW status for members of irregular
forces. First, they must be members of "militias [or] other volunteer corps, including
those of organized resistance movements, belonging to a Party to the conflict and
operating in or outside their own territory." Second, they have to fulfill some minimum
conditions: they must be under responsible command; have a fixed distinctive sign
recognizable at a distance; carry arms openly; and conduct their operations in
accordance with the laws and customs of war.
The members of al-Qaeda may not be entitled to POW status because they may not
meet all of these criteria; in particular they have made clear that they do not conduct
their operations in accordance with the laws and customs of war. While such persons
may more appropriately be called "unlawful" or "non-privileged" combatants, it does
not follow that they can be denied all protections of the Geneva Conventions, such as
humane treatment.
5. Rights of Prisoners under International Humanitarian Law
The status of individual prisoners determines what rights they are due under the Geneva
Conventions. The rights of POWs vary significantly from those of so-called unlawful or
nonprivileged combatants. However, all detainees may be prosecuted for war crimes,
crimes against humanity, and criminal acts unrelated to the armed conflict. Likewise, all
persons in custody, regardless of their status, must be treated humanely. An important
measure to ensure humane treatment, provided under the Geneva Conventions, is to
permit visits by the International Committee of the Red Cross and for the detaining
government to follow their recommendations.
The rights and protections granted to POWs are enumerated in detail in the Third
Geneva Convention. "Nonprivileged" or "unlawful" combatants are protected under the
Fourth Geneva Convention, customary international law and, where applicable,
Protocol I to the Geneva Conventions. Although the United States is
not a party to Protocol I, the U.S. government accepts many of its provisions as part of
customary international law; especially relevant is article 75 on "fundamental
guarantees," which sets out basic standards of humane treatment and due process that is
required for all persons affected by the conflict, regardless of their status.
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Humane Treatment: POWs must be humanely treated at all times. They must be
protected against acts of violence or intimidation and against insults or public curiosity.
POWs must be kept in facilities "under conditions as favorable as those for the forces of
the Detaining Power in the same area." In particular, "the premises provided for the use
of prisoners of war...shall be entirely protected from dampness and adequately heated
and lighted." (Third Geneva, Arts. 13, 25, 34).
Nonprivileged combatants are entitled to humane treatment. While the detainees can be
denied certain right that would endanger security-such limitations should be absolutely
necessary, and should never amount to inhumane or degrading treatment.
Interrogation: While POWs the detaining power may interrogate them, POWs are only
required to provide their surname, first names, rank, birth date of birth, and their army,
regimental, personal or serial number under questioning. POWs, cannot be punished if
they do not but are not required to provide additional any other information. "No
physical or mental torture, nor any other form of coercion, may be inflicted on prisoners
of war
to secure from them information of any kind whatever. Prisoners of war who refuse to
answer may not be threatened, insulted, or exposed to any unpleasant or
disadvantageous treatment of any kind." (Third Geneva, Art. 17).
While nonprivileged or unlawful combatants cannot claim the same protections under
interrogation as POWs, they are, like all detainees, protected from torture and other
cruel, inhuman or degrading treatment as set out under international human rights law
and customary international law. Relevant international instruments include Article 75
of Protocol I, the International Covenant on Civil and Political Rights, and the
Convention against Torture. For instance, Article 2 of the Convention against Torture,
which the U.S. has ratified, states: "No exceptional circumstance whatsoever, whether a
state of war or a threat of war, internal political instability or any other public
emergency, may be invoked as a justification of torture." Violation of Article 2 is a
criminal offense of universal jurisdiction.
Prosecution: While POWs cannot be tried or punished simply for their participation in
the armed conflict, they may be prosecuted for war crimes and crimes against humanity
and for common crimes under the laws of the detaining power or international law.
POWs are entitled to substantial legal protections during the trial: POWs have the right
to be tried before the same courts and facing the same procedures that the detaining
power's military personnel would face, offering "the essential guarantees of
independence and impartiality." In the case of Afghanistan POWs, that would mean trial
before U.S. court martial or U.S. civilian courts. POWs are entitled to competent
counsel to represent them at the trial, and must be informed of the charges against them.
POWs are also entitled to have an appeal of their conviction and sentence.
POW status provides protection only for the act of taking up arms against opposing
military forces, and if that is all a POW has done, then repatriation at the end of the
conflict would be required. But as Article 82 of Third Geneva explains, POW status
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does not protect detainees from criminal offenses that are applicable to the detaining
powers' soldiers as well. That is, if appropriate evidence can be collected, the United
States would be perfectly entitled to charge the Guantanamo detainees with war crimes,
crimes against humanity, or other violations of U.S. criminal law, whether or not they
have POW status. As Article 115 of the Third Geneva Convention explains, POWs
detained in connection with criminal prosecutions are entitled to be repatriated only "if
the Detaining Power [that is, the United States] consents."
Nonprivileged or unlawful combatants may be charged with criminal offenses arising
out of their participation in the armed conflict, armed activity, because they are not
entitled to the immunity that is often called the "combatant's privilege." Like POWs,
they can also be charged with committing war crimes, crimes against humanity, and
common crimes. or other serious offenses. While nonprivileged combatants are not
entitled to the extensive trial rights of POWs under the Third Geneva Convention, they
are entitled to a "fair and regular trial" and the trial protections provided by the Fourth
Geneva Convention. It is a fundamental provisions of the Geneva Conventions that all
detainees are entitled to "all the judicial guarantees recognized as indispensable by
civilized peoples." Nonprivileged combatants are entitled to trial before a "properly
constituted, non-political military court," to be informed of the charges against them, to
present their defense and call witnesses, to be assisted by qualified counsel of their own
choice, to have an interpreter, and to mount an appeal against the conviction and
sentence. As an exceptional measure, trials may be held in camera if the security of the
state so requires.
1 International Committee of the Red Cross, Commentary: IV Geneva
Convention Relative to the Protection of Civilian Persons in Time of War (Geneva:
1958), p. 51 (emphasis in original). The International Criminal Tribunal for the Former
Yugoslavia, charged with prosecuting war crimes and crimes against humanity
committed during the recent conflicts in the Balkans, has explicitly affirmed this
principle in a 1998 judgment, stating that "there is no gap between the Third and Fourth
Geneva Conventions. If an individual is not entitled to the protection of the Third
Convention as a prisoner of war ... he or she necessarily falls within the ambit of [the
Fourth Convention], provided that its article 4 requirements [defining a protected
person] are satisfied." Celebici Judgment, para. 271 (1998).
2 Celebici judgment, para 271.
3 Remarks of Michael J. Matheson, American University Journal of
International Law and Policy, Vol. 2. No. 2 (1987), pp. 425-26.
4 U.S. military Judge Advocate General Operational Law Handbook (2000).
Eds. M. Lacey & B. Bill. International Law and Operational Law Department, Judge
Advocate General's School, Charlottesville, Ch 5, p. 7.
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Public Law 107-40, 107th Congress
Joint Resolution
To authorize the use of United States Armed Forces against those responsible
for the recent attacks launched against the United States.
Whereas, on September 11, 2001, acts of treacherous violence were committed against
the United States and its citizens; and
Whereas, such acts render it both necessary and appropriate that the United States
exercise its rights to self-defense and to protect United States citizens both at
home and abroad; and
Whereas, in light of the threat to the national security and foreign policy of the United
States posed by these grave acts of violence; and
Whereas, such acts continue to pose an unusual and extraordinary threat to the national
security and foreign policy of the United States; and
Whereas, the President has authority under the Constitution to take action to deter and
prevent acts of international terrorism against the United States: Now,
therefore, be it
Resolved by the Senate and House of Representatives of the United States of
America in Congress assembled,
SECTION 1. SHORT TITLE.
This joint resolution may be cited as the ``Authorization for Use of Military
Force''.
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) In General.--That the President is authorized to use all necessary and
appropriate force against those nations, organizations, or persons he determines
planned, authorized, committed, or aided the terrorist attacks that occurred on
September 11, 2001, or harbored such organizations or persons, in order to prevent any
future acts of international terrorism against the United States by such nations,
organizations or persons.
(b) War Powers Resolution Requirements.—
(1) Specific statutory authorization.--Consistent with section 8(a)(1)
of the War Powers Resolution, the Congress declares that this
section is intended to constitute specific statutory authorization
within the meaning of section 5(b) of the War Powers Resolution.
(2) Applicability of other requirements.--Nothing in this resolution
supercedes any requirement of the War Powers Resolution.
Approved September 18, 2001. PRESIDENT OF THE UNITED STATES
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Military Order of November 13, 2001
Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism
66 Federal Register 57833
By the authority vested in me as President and as Commander in Chief of the Armed
Forces of the United States by the Constitution and the laws of the United States of
America, including the Authorization for Use of Military Force Joint Resolution (Public
Law 107-40, 115 Stat. 224) and sections 821 and 836 of title 10, United States Code, it
is hereby ordered as follows:
Section 1. Findings.
(a) International terrorists, including members of al Qaida, have carried out attacks on
United States diplomatic and military personnel and facilities abroad and on citizens
and property within the United States on a scale that has created a state of armed
conflict that requires the use of the United States Armed Forces.
(b) In light of grave acts of terrorism and threats of terrorism, including the terrorist
attacks on September 11, 2001, on the headquarters of the United States Department of
Defense in the national capital region, on the World Trade Center in New York, and on
civilian aircraft such as in Pennsylvania, I proclaimed a national emergency on
September 14, 2001 (Proc. 7463, Declaration of National Emergency by Reason of
Certain Terrorist Attacks).
(c) Individuals acting alone and in concert involved in international terrorism possess
both the capability and the intention to undertake further terrorist attacks against the
United States that, if not detected and prevented, will cause mass deaths, mass injuries,
and massive destruction of property, and may place at risk the continuity of the
operations of the United States Government.
(d) The ability of the United States to protect the United States and its citizens, and to
help its allies and other cooperating nations protect their nations and their citizens, from
such further terrorist attacks depends in significant part upon using the United States
Armed Forces to identify terrorists and those who support them, to disrupt their
activities, and to eliminate their ability to conduct or support such attacks.
(e) To protect the United States and its citizens, and for the effective conduct of military
operations and prevention of terrorist attacks, it is necessary for individuals subject to
this order pursuant to section 2 hereof to be detained, and, when tried, to be tried for
violations of the laws of war and other applicable laws by military tribunals.
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(f) Given the danger to the safety of the United States and the nature of international
terrorism, and to the extent provided by and under this order, I find consistent with
section 836 of title 10, United States Code, that it is not practicable to apply in military
commissions under this order the principles of law and the rules of evidence generally
recognized in the trial of criminal cases in the United States district courts.
(g) Having fully considered the magnitude of the potential deaths, injuries, and property
destruction that would result from potential acts of terrorism against the United States,
and the probability that such acts will occur, I have determined that an extraordinary
emergency exists for national defense purposes, that this emergency constitutes an
urgent and compelling government interest, and that issuance of this order is necessary
to meet the emergency.
Sec. 2. Definition and Policy.
(a) The term "individual subject to this order" shall mean any individual who is not a
United States citizen with respect to whom I determine from time to time in writing
that:
(1) there is reason to believe that such individual, at the relevant times,
(i) is or was a member of the organization known as al Qaida;
(ii) has engaged in, aided or abetted, or conspired to commit, acts of
international terrorism, or acts in preparation therefore, that have caused,
threaten to cause, or have as their aim to cause, injury to or adverse
effects on the United States, its citizens, national security, foreign policy,
or economy; or
(iii) has knowingly harbored one or more individuals described in
subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and
(2) it is in the interest of the United States that such individual be subject to this
order.
(b) It is the policy of the United States that the Secretary of Defense shall take all
necessary measures to ensure that any individual subject to this order is detained in
accordance with section 3, and, if the individual is to be tried, that such individual is
tried only in accordance with section 4.
(c) It is further the policy of the United States that any individual subject to this order
who is not already under the control of the Secretary of Defense but who is under the
control of any other officer or agent of the United States or any State shall, upon
delivery of a copy of such written determination to such officer or agent, forthwith be
placed under the control of the Secretary of Defense.
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Sec. 3. Detention Authority of the Secretary of Defense. Any individual subject to this
order shall be -
(a) detained at an appropriate location designated by the Secretary of Defense outside or
within the United States;
(b) treated humanely, without any adverse distinction based on race, color, religion,
gender, birth, wealth, or any similar criteria;
(c) afforded adequate food, drinking water, shelter, clothing, and medical treatment;
(d) allowed the free exercise of religion consistent with the requirements of such
detention; and
(e) detained in accordance with such other conditions as the Secretary of Defense may
prescribe.
Sec. 4. Authority of the Secretary of Defense Regarding Trials of Individuals Subject to
this Order.
(a) Any individual subject to this order shall, when tried, be tried by military
commission for any and all offenses triable by military commission that such individual
is alleged to have committed, and may be punished in accordance with the penalties
provided under applicable law, including life imprisonment or death.
(b) As a military function and in light of the findings in section 1, including subsection
(f) thereof, the Secretary of Defense shall issue such orders and regulations, including
orders for the appointment of one or more military commissions, as may be necessary to
carry out subsection (a) of this section.
(c) Orders and regulations issued under subsection (b) of this section shall include, but
not be limited to, rules for the conduct of the proceedings of military commissions,
including pretrial, trial, and post-trial procedures, modes of proof, issuance of process,
and qualifications of attorneys, which shall at a minimum provide for-
(1) military commissions to sit at any time and any place, consistent with such
guidance regarding time and place as the Secretary of Defense may provide;
(2) a full and fair trial, with the military commission sitting as the triers of both
fact and law;
(3) admission of such evidence as would, in the opinion of the presiding officer
of the military commission (or instead, if any other member of the commission
so requests at the time the presiding officer renders that opinion, the opinion of
the commission rendered at that time by a majority of the commission), have
probative value to a reasonable person;
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(4) in a manner consistent with the protection of information classified or
classifiable under Executive Order 12958 of April 17, 1995, as amended, or any
successor Executive Order, protected by statute or rule from unauthorized
disclosure, or otherwise protected by law, (A) the handling of, admission into
evidence of, and access to materials and information, and (B) the conduct,
closure of, and access to proceedings;
(5) conduct of the prosecution by one or more attorneys designated by the
Secretary of Defense and conduct of the defense by attorneys for the individual
subject to this order;
(6) conviction only upon the concurrence of two-thirds of the members of the
commission present at the time of the vote, a majority being present;
(7) sentencing only upon the concurrence of two-thirds of the members of the
commission present at the time of the vote, a majority being present; and
(8) submission of the record of the trial, including any conviction or sentence,
for review and final decision by me or by the Secretary of Defense if so
designated by me for that purpose.
Sec. 5. Obligation of Other Agencies to Assist the Secretary of Defense.
Departments, agencies, entities, and officers of the United States shall, to the maximum
extent permitted by law, provide to the Secretary of Defense such assistance as he may
request to implement this order.
Sec. 6. Additional Authorities of the Secretary of Defense.
(a) As a military function and in light of the findings in section 1, the Secretary of
Defense shall issue such orders and regulations as may be necessary to carry out any of
the provisions of this order.
(b) The Secretary of Defense may perform any of his functions or duties, and may
exercise any of the powers provided to him under this order (other than under section
4(c)(8) hereof) in accordance with section 113(d) of title 10, United States Code.
Sec. 7. Relationship to Other Law and Forums.
(a) Nothing in this order shall be construed to-
(1) authorize the disclosure of state secrets to any person not otherwise
authorized to have access to them;
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(2) limit the authority of the President as Commander in Chief of the Armed
Forces or the power of the President to grant reprieves and pardons; or
(3) limit the lawful authority of the Secretary of Defense, any military
commander, or any other officer or agent of the United States or of any State to
detain or try any person who is not an individual subject to this order.
(b) With respect to any individual subject to this order-
(1) military tribunals shall have exclusive jurisdiction with respect to offenses
by the individual; and
(2) the individual shall not be privileged to seek any remedy or maintain any
proceeding, directly or indirectly, or to have any such remedy or proceeding
sought on the individual's behalf, in (i) any court of the United States, or any
State thereof, (ii) any court of any foreign nation, or (iii) any international
tribunal.
(c) This order is not intended to and does not create any right, benefit, or privilege,
substantive or procedural, enforceable at law or equity by any party, against the United
States, its departments, agencies, or other entities, its officers or employees, or any other
person.
(d) For purposes of this order, the term "State" includes any State, district, territory, or
possession of the United States.
(e) I reserve the authority to direct the Secretary of Defense, at any time hereafter, to
transfer to a governmental authority control of any individual subject to this order.
Nothing in this order shall be construed to limit the authority of any such governmental
authority to prosecute any individual for whom control is transferred.
Sec. 8. Publication.
This order shall be published in the Federal Register.
George W. Bush
HE WHITE HOUSE,
November 13, 2001.
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Testimony of Glenn A. Fine, Inspector General, U.S. Department of Justice
before the Senate Committee on the Judiciary concerning
"The September 11 Detainees: A Review of the Treatment
of Aliens Held on Immigration Charges in Connection with
the Investigation of the September 11 Attacks"
June 25, 2003
*****
Mr. Chairman, Senator Leahy, and Members of the Committee on the Judiciary:
Thank you for inviting me to testify about the Office of the Inspector General's (OIG)
report that examines the treatment of aliens held on immigration charges in connection
with the investigation of the September 11, 2001, terrorist attacks.
In my testimony today, I will summarize the major findings and recommendations from
our 198-page report, which we released on June 2. However, to help place our findings
in context, I will first describe the background and scope of our review.
I.BACKGROUND AND SCOPE OF OIG REVIEW
The OIG conducted this review under the authority of the Inspector General Act and the
specific directives contained in The USA PATRIOT Act (Patriot Act). Section 1001 of
the Patriot Act directs the OIG to receive and review claims of civil rights and civil
liberties violations by Department of Justice (Department) employees and to inform
Congress about the results of our reviews.
Pursuant to these responsibilities, the OIG initiated this review examining the treatment
of detainees arrested on immigration charges in connection with the Department's
September 11 terrorism investigation, known as PENTTBOM. The FBI initiated this
massive investigation to identify the terrorists who committed the September 11 attacks
and anyone who knew about or aided their efforts. In addition, the FBI worked with
other federal, state, and local law enforcement agencies to prevent any follow-up
attacks in this country and abroad.
Given the identities of the September 11 terrorists, the Department recognized from the
earliest days that the investigation contained a significant immigration law component.
One of the principal responses by law enforcement authorities after the attacks was to
use federal immigration laws to detain aliens suspected of having possible ties to
terrorism. Many of these individuals were questioned and subsequently released
without being charged with a criminal or immigration offense. Many others were
arrested and detained for violating federal immigration laws.
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Our review determined that 762 aliens were detained on immigration charges in
connection with the terrorism investigation in the first 11 months after the attacks. Of
these 762 aliens, 24 were in the custody of the Immigration and Naturalization Service
(INS) on immigration violations prior to the terrorist attacks. All 762 aliens were placed
on what became known as an "INS Custody List" because of the FBI's assessment that
they may have had a connection to the September 11 attacks or terrorism in general, or
because the FBI was unable, at least initially, to determine whether they were connected
to terrorism. In our review, these aliens are referred to as "September 11 detainees."
Our review examined various issues relating to these detainees, including:
the classification of the September 11 detainees;
the timeliness of charging September 11 detainees with immigration violations;
issues affecting the length of the detainees' confinement, including the process
undertaken by the FBI and others to clear individual detainees of a connection to
the September 11 attacks or terrorism in general;
bond decisions for the detainees;
the timing of removal of the detainees; and
the conditions of confinement for the September 11 detainees.
Our review focused on detainees held at the Passaic County Jail (Passaic) in Paterson,
New Jersey (a county facility under contract to the INS) and at the Metropolitan
Detention Center (MDC) in Brooklyn, New York, operated by the Federal Bureau of
Prisons (BOP). We chose these two facilities because they held the majority of
September 11 detainees and were the focus of many complaints about detainee
mistreatment.
At the outset, it is important to understand not only what our review examined, but also
what it did not examine. We did not review all aspects of the Department's terrorism
investigations. For example, we did not review individuals arrested on criminal charges
in connection with the terrorism investigation or those held on material witness
warrants. We did not examine the treatment of aliens or United States citizens
considered enemy combatants and held in Guantanamo or in the United States. Further,
we did not examine or assess the Department's decision to limit public release of
information concerning arrests related to the ongoing terrorism investigation, the
Department's decision to close immigration hearings to the public, or its use of
voluntary interviews for certain categories of aliens. Several lawsuits related to
these issues are currently pending. It was beyond the scope of our review to examine
these issues, and we took no position on them.
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In addition, it is important to understand the context of our findings. In response to the
September 11 terrorist attacks on the United States, the FBI allocated massive resources
to the PENTTBOM investigation, assigning more than 4,000 FBI special agents and
3,000 FBI support personnel to work on it within days of the attacks. The amount of
information and leads about the attacks and potential terrorists that the FBI received in
the weeks and months after the attacks was staggering. Moreover, as our report points
out, the Department was faced with unprecedented challenges responding to the attacks,
including the chaos caused by the attacks and the possibility of follow-up attacks. The
FBI in New York, for example, was forced to evacuate its offices that were located near
Ground Zero and had to set up command posts in a parking garage and other sites in the
New York area. In addition, during the fall of 2001 and the spring of 2002, FBI field
offices were conducting other important investigations, including the anthrax attacks,
the Daniel Pearl kidnapping in Pakistan, and the crash of an airliner in Queens, New
York. At the same time, the FBI was assisting with security for the Winter Olympics in
Salt Lake City.
Moreover, it also is important to recognize that Department employees worked
tirelessly and with enormous dedication over an extended period of time to meet the
challenges posed by the September 11 attacks and the ongoing threat of terrorism. In
conducting our review, we were mindful of this context and the circumstances
confronting Department employees at the time. Our findings should not be used to
diminish, in any way, the dedication and contributions Department employees made and
continue to make to ensure the safety of the country.
Yet, while recognizing these difficulties and challenges that confronted and still
confront the Department, we found significant problems in the way the Department
handled the September 11 detainees. As the title of this hearing indicates ("Lessons
Learned - The Inspector General's Report on the 9/11 Detainees"), we believe that
lessons can be learned from a review of this issue. In that vein, we make 21
recommendations in our report to help improve the Department's handling of detainees
in the future.
I will now discuss the major findings of our review, as well as our recommendations.
II.SUMMARY OF OIG FINDINGS
A. Classification of Detainees
In the aftermath of the September 11 attacks, the FBI pursued thousands of leads
relating to its PENTTBOM investigation, in New York and elsewhere, ranging from
information obtained from a search of the hijackers' cars to anonymous tips called in by
people who were suspicious of Arab and Muslim neighbors who kept odd schedules.
If the FBI encountered an alien in connection with pursuing any of these leads, whether
or not the alien was the subject of the lead, the FBI asked the INS to determine the
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alien's immigration status. If the alien was found to be in the country illegally - either by
overstaying his visa or entering the country illegally - the alien was detained by the INS.
The FBI then was asked to make an assessment of whether the arrested alien was "of
interest" to its terrorism investigation. If the FBI indicated that the alien was "of
interest," "of high interest," or "of undetermined interest," the alien was placed on the
INS Custody List and treated as a September 11 detainee.
These initial classifications by the FBI had significant ramifications for the detainees.
First, the Department instituted a policy that any detainee on the INS Custody List had
to be detained until cleared by the FBI. Although never communicated in writing, this
"hold until cleared" policy was clearly understood and applied throughout the
Department. As a result, the September 11 detainees were not allowed to be released on
bond according to normal INS procedures and were not allowed to depart or be
removed from the United States before FBI clearance, even if an Immigration Judge
ordered their removal or the detainee voluntarily agreed to leave. Second, the initial
classification decision by the FBI often determined where the detainees would be
confined and their conditions of confinement.
Our review found that these classification decisions were not handled uniformly
throughout the country. FBI and INS offices outside New York City attempted to screen
out or "vet" cases in which illegal aliens were encountered only coincidentally to a
PENTTBOM lead or showed no indication of any connection to terrorism. In these
cases, the alien was not placed on the INS Custody List and was processed according to
normal INS procedures.
However, this vetting process was not used in the New York City area. Rather, the FBI
in New York did not attempt to distinguish between those aliens who it actually
suspected of having a connection to the September 11 attacks or terrorism from those
aliens who, while possibly guilty of violating federal immigration law, had no
connection to terrorism but simply were encountered in connection with a PENTTBOM
lead. As a result, anyone picked up in connection with a PENTTBOM lead in the New
York area was deemed "of interest" for purposes of the "hold until cleared" policy,
regardless of the origin of the lead or any genuine indications of a possible connection
to terrorism For example, if an agent searching for a particular person on a
PENTTBOM lead arrived at a location and found other individuals who were in
violation of their immigration status, those individuals were detained and considered to
be arrested in connection with the PENTTBOM investigation.
Our review does not criticize the Department's decision to investigate or require FBI
clearance for aliens who the FBI actually suspected of having a connection to terrorism
or the September 11 attacks. However, we do criticize the inconsistent manner in which
these decisions were made Even in the hectic aftermath of the September 11 attacks, we
believe the FBI should have taken more care to attempt to distinguish between aliens
who it actually suspected of having a connection to terrorism and aliens who, while
guilty of violating immigration law, had no connection to terrorism but simply were
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encountered in connection with a PENTTBOM lead. In most parts of the country
this was done; in New York, where the bulk of the September 11 detainees were
arrested it was not.
B.Notice of Charges
Our review found that many September 11 detainees did not receive notice of the
charges against them in a timely manner. Normally, after an alien is arrested for
violating federal immigration law, the INS notifies the alien of the charges and initiates
a removal proceeding by serving a Notice to Appear (NTA) on the alien and the
Immigration Court. The NTA must include the alien's specific acts or conduct that is in
violation of the law.
Prior to the September 11 attacks, the INS was required by federal regulation to make
this charging determination within 24 hours of arrest. The Department changed the
regulation soon after the September 11 attacks to allow the INS 48 hours to make the
determination. The revised regulation also included an exception to the 48-hour rule
that provided that in the event of an emergency or other extraordinary circumstances,
the charging decision could be made within an additional reasonable period of time. The
regulation does not define "extraordinary circumstances" or "reasonable period of time."
Moreover the regulation contains no requirement as to when the INS must notify the
alien of the charges; the regulation only addresses when the INS must make its
charging decision.
Our review determined that the INS did not record when the charging decisions were
actually made but it did record when the charges were served on the alien. According to
the INS, before the September 11 attacks its goal was to serve charges on aliens in
writing within 48 hours of arrest. After September 11, the INS's goal was to serve
charges on aliens within 72 hours.
We found that the INS served 60 percent of the September 11 detainees with NTAs
within its goal of 72 hours. However, many detainees did not receive their charging
documents for weeks, and some for more than a month, after being arrested. Detainees
housed in the MDC received notice of their charges an average of 15 days after their
arrest. Delays were caused by several factors, including the INS's decision to review
and approve all charges at INS Headquarters and miscommunications between the INS
New York and Newark Districts, each of which presumed that the other office had
served the charging documents on aliens who were transferred from the INS in
New York to the INS in Newark.
The delays in receiving notice of the charges affected the September 11 detainees in
various ways. First, it postponed detainees' knowledge of the specific immigration
charges they faced. Second, it affected the detainees' ability to obtain effective legal
counsel given the lack of specific charges. Third, it delayed the detainees' opportunity to
request bond re-determination hearings and seek to release.
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C. The Clearance Process
Our review found that the Department's "hold until cleared" policy was based on the
belief - which turned out to be erroneous - that the FBI's clearance process would
proceed quickly. For example, many Department officials told us that they believed that
the FBI would take a few days or a few weeks to clear aliens arrested on PENTTBOM
leads but who had no additional indications of a connection to terrorism.
That belief was inaccurate. The FBI cleared less than 3 percent of the 762 September 11
detainees within 3 weeks of their arrest. The average length of time from arrest of a
September 11 detainee to clearance by FBI Headquarters was 80 days. More than a
quarter of the 762 detainees' clearance investigations took longer than 3 months.
The delays in the clearance process were attributable to various factors. The FBI did not
provide adequate field office staff to conduct the detainee clearance investigations in a
timely manner and failed to provide adequate FBI Headquarters staff to coordinate and
monitor the detainee clearance process. We also found that, in New York, once the FBI
investigated a lead and the INS arrested an alien in connection with the lead, FBI agents
generally moved on to the next lead rather than investigate or clear the person arrested.
In addition, FBI Headquarters did not set any time limits for completing the clearance
investigations. The FBI also requested CIA checks on the detainees, but the FBI often
took months to review the information it received from the CIA. We also found delays
between when local FBI offices cleared the detainees and when FBI Headquarters
processed the final clearances.
As we note in the report, in contrast to the untimely clearance process for September 11
detainees, the FBI did a much better job handling clearances from a "Watch List" it sent
to airlines, rail stations, and common carriers to assist in the terrorism investigation. For
example, the FBI created guidelines for who should be placed on the Watch List, and it
worked diligently to remove as quickly as possible those people from the list who had
no connection to terrorism. The FBI's efficient handling of this Watch List contrasts
markedly with its handling of the clearance process for September 11 detainees.
As discussed below, the untimely clearance process for September 11 detainees had
significant ramifications for the detainees, who were denied bond and were not
permitted to leave the country until the clearance process was completed, even when
they had received final orders of removal or voluntary departure orders.
D. Bond and Removal Issues
The Department instituted a "no bond" policy for all September 11 detainees as part of
its decision to hold the detainees until the FBI could complete its clearance
investigations. Several INS officials told the OIG that, at least initially, they expected
the FBI to provide them with information to present at bond hearings to support the "no
bond" position. Instead, INS officials told the OIG that often they received no
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information from the FBI about September 11 detainees and, consequently, had to
request multiple continuances in the detainees' bond hearings.
Our review determined that the INS raised concerns about this situation, particularly
when it became clear that the FBI's clearance process was much slower than anticipated
and the INS had little information in many individual cases on which to base its
continued opposition to bond. As a result, the INS was placed in the position of arguing
for "no bond" even when it had no information from the FBI to support that argument,
other than the fact that the detainee was arrested in connection with a PENTTBOM
lead.
Moreover, the question arose whether the INS legally could hold September 11
detainees after they had received final orders of removal or voluntary departure orders
from an Immigration Judge. In general, aliens found to have violated immigration law
must be removed from the United States within 90 days of when the alien is ordered
removed. Because of the "hold until cleared policy," detainees were held, even beyond
the 90 days normally provided for removal, despite their willingness and ability to leave
the country. Senior INS attorneys expressed doubts about the legality of preventing the
September 11 detainees from leaving the country, not only after the90-day period had
expired but even within the 90-day removal period, if the detainee was willing to leave
the country and arrangements could be made to remove the detainee.
Considering the significant concerns that INS attorneys harbored about the legality of
the Department's policy, we believe the INS had a responsibility to press the issue
clearly - and in\writing - if it believed that the policy presented a legal issue for the
Department. It did not do so\until January 2002, several months after the issue first
arose.
\In late January 2002, the FBI brought this issue to the Department's attention, and the
Department\ abruptly changed its position as to whether the INS should continue to
hold aliens after they had received final departure or removal orders until the FBI had
completed the clearance process. After\ this time, the Department allowed the INS to
remove aliens with final orders without FBI clearance.
A Department legal opinion - issued by the Office of Legal Counsel in February 2003,
well after the time frame under examination in this review - ultimately concluded that it
was permissible for the Department to take more than 90 days to remove an alien if the
delay was related to affecting the nation's immigration laws and policies. The opinion
concluded that investigating whether an alien had terrorist connections met this test. A
pending lawsuit also is addressing this legal issue.
Our report concluded that the Department did not address this issue in a timely or
considered way and abruptly changed its policy in January 2002, without the benefit of
a legal analysis. Only later did the Department request a legal opinion. We believe the
Department should have addressed squarely and earlier the issue of the Department's
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authority to hold detainees up to and beyond 90 days from when they received final
orders of removal.
Finally, federal regulations require that aliens held for 90 days after final orders of
removal are entitled to custody reviews to determine if their continued custody is
warranted. We found that the INS rarely conducted such required reviews for the
September 11 detainees.
E. Conditions of Confinement
The INS made the decision where to house September 11 detainees, relying primarily
on the FBI's assessment of the detainees' possible links to terrorism. Aliens deemed by
the FBI to be "of high interest" to its terrorism investigation generally were held in BOP
high-security facilities, such as the MDC in Brooklyn, New York. Generally, although
not always, aliens deemed by the FBI to be "of interest" or "of undetermined interest"
were detained in lower-security facilities, such as the Passaic County Jail in Paterson,
New Jersey. FBI agents generally made this assessment of interest without guidance or
standard criteria, based on the limited information available at the time of the aliens'
arrests.
Where a September 11 detainee was confined had significant ramifications, because a
detainee held at the MDC experienced much more restrictive conditions of confinement
than those held at Passaic.
1.Metropolitan Detention Center
In examining the treatment of detainees at the MDC, we appreciated the fact that the
influx of high-security detainees stretched the MDC's resources. Its employees often
worked double shifts during a highly emotional period of time, close to the scene of the
terrorist attacks. We also appreciate the uncertainty surrounding the detainees and the
chaotic conditions in the immediate aftermath of the September 11 attacks.
However, our review raises serious concerns about the treatment of the September 11
detainees housed at the MDC. In the heightened state of alert after the terrorist attacks,
the BOP imposed a total communications blackout for several weeks on the September
11detainees held at the MDC. After the blackout period ended, the MDC combined a
series of existing policies and procedures for inmates in other contexts and applied them
to the September 11 detainees. For example, the MDC designated the detainees as
"Witness Security" inmates in an effort to restrict access to information about them,
including their identity, location, and status. Designating the detainees at the MDC in
this manner frustrated efforts by detainees' attorneys, families, and even law
enforcement officials to determine where the detainees were being held. As a result of
this designation, we found that MDC staff frequently - and mistakenly - told people
who inquired about a specific September 11 detainee that the detainee was not held at
the facility when, in fact, the detainee was there.
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Further, the MDC's restrictive and inconsistent policies on telephone access for
detainees prevented some detainees from obtaining legal counsel in a timely manner.
Most of the September 11 detainees did not have legal representation prior to their
detention at the MDC. Consequently, the policy instituted by the MDC that permitted
detainees only one legal call per week - while complying with broad BOP national
standards - severely limited the detainees' ability to obtain and consult with legal
counsel.
Further complicating the detainees' efforts to obtain counsel, the pro bono attorney lists
provided September 11 detainees contained inaccurate and outdated information. As a
result, detainees often used their sole legal call during a week to try to contact one of the
legal representatives on the pro bono list, only to find that the attorneys either had
changed their telephone numbers or did not handle the particular type of immigration
situation faced by the detainees.
In addition, detainees complained that legal calls that resulted in a busy signal or calls
answered by voicemail counted as their one legal call for that week. When questioned
about this, MDC officials gave differing responses about whether or not reaching an
answering machine counted as a completed legal call. We believe that counting calls
that only reached a voicemail, resulted in a busy signal, or went to a wrong number was
unduly restrictive and inappropriate.
Moreover, the manner in which the MDC inquired whether the detainees wanted to
place a legal call was unclear. In many instances, the unit counselor inquired whether
September 11 detainees wanted their weekly legal call by asking, "are you okay?"
Several detainees told the OIG that for some time they did not realize that an
affirmative response to this casual question meant they opted to forgo their legal call for
that week. We believe the BOP should have asked the detainees directly "do you want
a legal telephone call this week?" rather than relying on the detainees to decipher that a
shorthand statement "are you okay?" meant "do you want to place a legal telephone
call?" As a result of these policies, it took many detainees a long period of time to
contact a lawyer.
The MDC created a new special housing unit (called the Administrative Maximum
Special Housing Unit, or ADMAX SHU) to hold the September 11 detainees until the
FBI cleared them. In this unit, the MDC applied existing BOP policies applicable to
inmates in disciplinary segregation. As a result, the detainees were placed in restraints
whenever they were moved, including handcuffs, leg irons, and heavy chains. Four
MDC officers had to be present each time a detainee was escorted from the cell.
Because of these restrictive conditions, we believe it was important for the FBI to
determine, in a reasonable time frame, whether these detainees were connected to
terrorism or whether they could be cleared to be moved from the ADMAX SHU to the
MDC's much less restrictive general population. Yet, detainees remained in the
ADMAX SHU for long periods of time waiting for the FBI's clearance process. Even
when the FBI cleared the detainees, they remained in the ADMAX SHU for days and
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sometimes weeks longer than necessary due to delays between the time the FBI cleared
a detainee of a connection to terrorism and the time the MDC
received formal notification of the clearance.
The OIG found that certain other conditions of confinement for the September 11
detainees at the MDC were unduly harsh, such as subjecting the detainees to having two
lights illuminated in their cells 24 hours a day for several months longer than
necessary, even after electricians rewired the cellblock to allow the lights to be turned
off individually.
With regard to allegations of abuse, we concluded that the evidence indicates a pattern
of physical and verbal abuse by some correctional officers at the MDC against some
September11 detainees, particularly during the first months after the attacks and during
intake and movement of prisoners. This generally consisted of slamming some
detainees into walls; dragging them by their arms; stepping on the chain between their
ankle cuffs; twisting their arms, hands, wrists, and fingers; and making slurs and threats
such as "you will feel pain" and "you're going to die here."
Most correctional officers we interviewed denied the allegations of abuse, and federal
prosecutors have declined the cases for criminal prosecution. However, the OIG is
continuing to investigate these matters administratively. Our investigation has not
uncovered any evidence that the physical or verbal abuse was engaged in or condoned
by anyone other than the correctional officers who committed it.
We also found that MDC staff failed to inform MDC detainees in a timely manner
about the process for filing formal complaints about their treatment.
In addition, we found that MDC staff appropriately took some affirmative steps to
prevent potential staff abuse against September 11 detainees - and potentially protect
MDC staff from unfounded allegations of abuse - by installing security cameras in each
detainee's cell and by requiring staff to videotape all detainee movements outside their
cells. However, the BOP changed its policy and permitted MDC staff to reuse or
destroy these videotapes after 30 days (as opposed to keeping them "indefinitely" as
required in the original policy), which hampered the usefulness of the videotape
system to prove or disprove allegations of abuse raised by individual detainees.
The decision to change the videotape policy was made by a BOP Regional Director. We
do not believe, and have found no evidence to suggest, that the decision to change the
policy was designed to cover up abuse. We also understand the difficulty in storing the
hundreds of videotapes the MDC accumulated after several months of taping the
detainees. But the decision to recycle or destroy the videotapes after 30 days meant
that the usefulness of the tapes was limited.
2.Passaic County Jail
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In contrast to our findings at the MDC, our review found that the September 11
detainees confined at Passaic had much different, and significantly less harsh,
experiences. According to INS data, Passaic housed 400 September 11 detainees from
the date of the terrorist attacks through May 30, 2002. This was the largest number of
September 11 detainees held at any single U.S. detention facility.
Passaic detainees housed in the general population were treated like "regular" INS
detainees who also were held at the facility. Although we received some allegations of
physical and verbal abuse, we did not find the evidence indicated a pattern of abuse at
Passaic. However, we did find that the INS failed to conduct sufficient and regular visits
to Passaic to ensure the September 11 detainees' conditions of confinement were
appropriate.
III.RECOMMENDATIONS
We believe the chaotic situation and uncertainties surrounding the detainees' role in the
September 11attacks, and the potential of additional attacks, explain many of the
problems we found in our review, but they do not explain or justify all of them. We
therefore offered 21 recommendations to address the issues in our review. We have
asked the Department, the FBI, and the BOP to respond to these recommendations in
writing within 30 days. The Department of Homeland Security (DHS) OIG has made
the same request on our behalf to the immigration officials involved in these issues but
who have since transferred out of the Department of Justice into DHS. At this stage, it
appears that the Department and its components are taking our recommendations
seriously and are considering implementing many of them.
Examples of our recommendations include:
The Department and the FBI should develop clearer and more objective criteria to guide
their classification decisions in any future cases involving mass arrests of illegal aliens
in connection with terrorism investigations. We note that the FBI, in connection with its
Watch List, developed guidance to govern who should be placed on that list. With
regard to detainees the FBI could, for example, develop generic screening protocols
(possibly in a checklist format) to help agents make more consistent and uniform
assessments of an illegal alien's potential connections to terrorism.
Unless federal immigration authorities, now part of the DHS, work closely with the
Department and the FBI to develop a more effective process for sharing information
and concerns, the problems inherent in having aliens detained under the authority of one
agency while relying on an investigation conducted by another agency can result in
delays, conflicts, and concerns about accountability. We recommend that immigration
officials enter into an agreement with the Department and the FBI to formalize policies,
responsibilities, and procedures for managing a national emergency that involves alien
detainees.
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While we appreciate the enormous demands placed on the FBI in the aftermath of the
terrorist attacks, the FBI did not adequately staff or assign sufficient priority to
investigate or clear September 11 detainees of a connection to terrorism. We believe it
critical for the FBI to devote sufficient resources in its field offices and at Headquarters
to conduct timely investigations on immigration detainees. In addition, FBI
Headquarters officials who coordinate the detainee clearance process and FBI field
office supervisors whose agents conduct the investigations should impose some
deadlines on agents to complete background investigations or, in the alternative,
reassign these cases to other agents.
Under federal regulation, the INS was required to decide whether to file immigration
charges against an alien within 48 hours of his arrest. However, the regulation
contained no requirement with respect to when the INS must notify the alien or
Immigration Court about the charges. We recommend that the immigration authorities
in the DHS document when the charging determination is made in order to determine
compliance with the "48-hour rule." We also recommend that the DHS convert the goal
of service of charges on aliens within 72 hours to a formal requirement. Further, we
recommend that it be defined what constitutes "extraordinary circumstances" and the
"reasonable period of time" when circumstances prevent the charging determination
from being made within 48 hours.
We recommend that the BOP establish a unique Special Management Category other
than "Witness Security" for aliens arrested on immigration charges who may be of
interest to a terrorism investigation. Such a classification should identify procedures that
permit detainees' reasonable access to telephones more in keeping with the detainees'
status as immigration detainees who may not have retained legal representation by the
time they are confined, rather than as pre-trial inmates who most likely have counsel. In
addition, BOP officials should train their staff on any new Special Management
Category to avoid repeating situations such as when MDC staff mistakenly informed
people inquiring about a specific September 11 detainee that the detainee was not held
at
We recommend that the BOP issue new procedures requiring that videotapes of
detainees with alleged ties to terrorism be retained for longer periods of time.
We recommend that the BOP ensure that all immigration detainees housed in a BOP
facility receive timely notice of the facility's policies, including its procedures for filing
complaints.
IV.CONCLUDING OBSERVATION
I believe it is important to recognize that, despite the sensitivity of many of the issues in
our report, the Department fully cooperated with our review, including the Attorney
General, the Deputy Attorney General, the FBI Director, and the many other
Department officials and employees to whom we spoke. On June 2, we released our
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full report with only a few words or phrases that contain specific identifying Sensitive"
by the
Department and the FBI.
The fact that the Department permitted the full report on these topics to be released
publicly is a credit to the Department. It also is a strength of the system that was
established in the Inspector General Act, which allows evaluations of important and
sensitive government actions by an independent OIG.
Although people have interpreted our report differently, we have attempted to describe
in detail the treatment of the September 11 detainees, to lay out the facts underlying the
policies that were implemented, and to provide the basis for the recommendations we
made. I believe this report can have a positive impact by describing what occurred and
providing recommendations for improvement should the Department be faced with
handling detainees in other situations, both large and small scale, that may arise in the
future.
This concludes my prepared statement. I would be pleased to answer any questions.
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