The Future is Not Set: Part 2

This is part 2 of the series.  Part 1 is here.

A History of Denying your Rights in the US

One might be tempted to argue that the US is different and what occurred in Germany cannot happen here.  American Exceptionalism is built into our psyche after all.  So let’s turn to US history and law and see what has happened here.


The US constitution puts in place a system of government with a President, a legislative and a judicial system where powers are expressly prescribed for each of these branches of government.  Over time, each of these institutions has flexed and increased their powers by claiming additional powers were implied to them in the constitution.  For example, the constitution does not expressly give the President the right to wage a “police action”, instead expressly granting the ability to declare war to congress.  But Presidents have argued the need for speedy action and the fact that the military answers to the executive branch, implies that the President can deploy military forces without an explicit war declaration.  Sometimes these “police actions” are really wars by any other name (e.g. Vietnam).  This difference between express and implied powers will become important shortly.

Notably, the fact that our courts can strike down laws passed by the legislative branch and signed by the President is also an implied power.  The constitution does not expressly give this authority to the judiciary, but instead the Supreme Court gradually gained it.  By 1803 the power to strike down laws was claimed in the Marbury vs. Madison case.  The reasoning the court used is that judges were required by Article 6 of the constitution to swear an oath to uphold the constitution.  Thus applying laws contrary to the constitution would violate this oath.  That’s pretty darn subtle if you think about it!  Nevertheless, that is what unpins the concept of judicial review that we hold so dear in this country.  (By the way, it is also the reasoning that some far-right militia groups use to ignore laws they feel are contrary to the constitution.)

The judiciary can, and does, invalidate laws and executive actions, if they believe they are contrary to the constitution; i.e., that they infringe on your rights.  When our system of government wants to take actions that violate these rights and have it be legitimate within the framework of the constitution, it has to first suspend the court system.

Habeas corpus, and denying access to the courts

A key provision for a free people is the right to habeas corpus.  Essentially this is the right to petition the judiciary for regress.  If you are held by the government, you petition the court for habeas corpus relief and the court can issue a whit (order) to the government to produce you before it.  Without this right you could simply be stuck in a jail and left there.  When Hitler pushed through the Reirchstag Fire Decree it granted the government the right to suspend habeas corpus.

The framers of the US constitution believed there was a need to suspend habeas corpus at times.  Their thinking is enshrined in Article 1, Section 9, Clause 2 of the constitution and reads “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.”  Some constitutional framers, such as Luther Martin, argued against having this clause in at all suggesting it opened an “engine of oppression”.

Expanding the authority of the President

Controversially, the statement about the suspension of habeas corpus is contained in the legislative, and not executive or judiciary sections of the constitution.  The first real suspension of habeas corpus was done by Abraham Lincoln without congressional approval.  Yes, that Abraham Lincoln.  He’s the first one to take away your rights as a US citizen and to do so without the clear express authority of the constitution behind him.  The case is very interesting, and worth dwelling on for a bit.

In April of 1861, at the outbreak of the Civil War, Lincoln was moving troops to Washington DC.  Maryland chose to be with the union, but sentiments in the state were mixed.  The governor of Maryland asked Lincoln not to move union troops through the state, and went so far as to deploy the state militia (National Guard) to destroy key bridges in the state that would be used to move troops.  Lincoln had many guardsmen arrested, as well as several Maryland officials (police, a judge, etc) and authorized the suspension of habeas corpus by the military.  These individuals were detained by the military as what we now call unlawful combattants.

One of the Maryland guardsmen arrested, Merrymand, petitioned the court for habeas corpus relief.  The court issued a whit and sent a federal marshal to Fort McHenry where he was being held.  Major Morris and the military at the fort denied the marshal’s entry and continued to hold Merrymand.  Merrymand appealed to the supreme court and Justice Taney on that court again issued a whit ordering Merrymand be brought before the court.  This whit was also ignored by the military and by Lincoln.

At this point in our history, we have what we now call a constitutional crisis.  The suspension of habeas corpus, which is supposed to be carried out by congress, has instead been ordered and carried out by the executive.  The executive has even denied an order from a sitting Supreme Court justice.  There are two bits of wiggle room left, however.  First, at the time, Supreme Court justices had a day job.  It wasn’t like today where justices only conduct Supreme Court functions.  Justice Taney was also on the State Supreme Court for Maryland.  It was argued at the time, and is argued to this day, that his order granting habeas corpus was him acting in his State Supreme Court role, and not his Federal Supreme Court role.  While the wording of his order was ambiguous, I find this argument a stretch.  The second argument made was, just as with a “police action”, Lincoln had to act fast. As we do today, the legislative branch does not meet fulltime, and even when it is in session, does not always act quickly.  The argument Lincoln made was the structure of the constitution gave him the implied power to suspend habeas corpus.  This argument was contentious in the day, but less of a stretch.  Eventually congress met and passed a suspension of habeas corpus act that also indemnified Lincoln and the military officers involved for their actions in ignoring the orders from the court, prior to the act being passed.

Key point #5: The President can act alone to suspend habeas corpus, at least for a few months.  The fact that the suspension language is in the legislative section of the constitution is irrelevant.

Denying all civil rights: WWII & Internment of US citizens

The US Congress responded to the Pearl Harbor attack by declaring war with Japan on December 8th 1941, and three days later, on the same day that Germany declared war with the United States, by declaring war with Germany.  Two months later, on February 19th 1942, President Roosevelt issued Executive Order 9066 which authorized the military to designate “military areas”, and to restrict the rights of people, including US citizens, within those areas.  Quickly a “military area” that encompassed approximately 100 miles landward of the entire west coast of the continental United States was setup.

Internment of people of Japanese decent within this zone was not immediately carried out.  The initial order (March 2nd 1942 – Public Proclamation 1) , simply ordered citizens who are subject to the 9066 order, to register a change of address if they moved.  Thousands of US citizens and residents fled the zone.  Soon after, additional restrictions (curfews, freezing of assets) were put in place, and on March 27th 1942 leaving the zone was prohibited.  About a month later, on May 3rd 1942 the interment began with Civilian Exclusion Order #34.  Anyone of Japanese decent still in the zone was forcibly relocated to a military run detainment camp.  About 5,000 people left the zone prior to the interment, but nearly 120,000 did not.  About 80,000 were US citizens, and nearly all were of Japanese ancestry.  Although 9066 was used against a few hundred individuals of German and Italian ancestry, including citizens, the racist nature of the order and its use is clear.

Interestingly, 9066 did not suspend habeas corpus.  What makes this peculiar, is a suspension of habeas corpus would permit detainment (imprisonment) without civilian court oversight.  Instead 9066 contained explicit direction on the care that those detained would receive.  It is as if Roosevelt did not want to ask congress to suspend habeas corpus or go so far as Lincoln and suspend it with implied powers.  Yet, he authorized the military to suspend citizen’s basic civil rights directly, while leaving civilian court oversight in place.  Such executive power is not granted anywhere in the constitution, but Roosevelt had a trump card:  as you can imagine the legality of the 9066 was challenged but in the 1940’s era courts all such challenges failed.  In Korematsu vs. United States the Supreme Court declared the internment legal by a 6-3 vote.  Important for those keeping score, all six of the Roosevelt appointees to the supreme court voted affirmatively.

We still look back on these cases and wonder what would we do in a similar situation.  Acting Solicitor General Neal Katyal on May 20th 2011 denounced the actions the justice department took at the time.  More reflective statements from Chief Justice Rehnquist (1988) and Justice Scalia (2014) suggest they felt the decision was wrong, but that in war-time, Presidents and Supreme Courts could reach the same conclusion again.  In effect, these two Justices are suggesting that war makes people do things they may later regret, but that’s just the way it is.

The Korematsu case has not been reversed and is still the law of the land.  Technically, the President can still designate you a potential threat to the security of the United States and put you in preventive detention even if you are a US citizen and even if you are on US soil.  But of course you would challenge it and at least so far in this story so far, you have the right to habeas corpus.  The judiciary would have to sign off on the government taking away your civil rights.

Key point #7: Your liberty is not an inalienable right as guaranteed by the constitution anymore.  If the popular sentiment is you should be pre-emptively detained or have other civil rights restricted, then the government will do this to you and the courts will not save you.

Perhaps the only thing stopping this from occurring routinely is the fear the government has that without a sufficient reason the courts would formally rule against it, removing this as yet unchecked power.  We’ll return to this concept shortly when we look at the present “war on terror”, but for now we must dive into a different aspect of law where the actions in WWII are telling and chilling.

Lists & the Alien and Sedition Acts

The detention of US citizens and residents of Japanese ancestry is the more famous internment that Roosevelt ordered, but there was another detention that occurred immediately after December 7th 1941.  This detention relied on a very old law, the Alien Enemies Act of 1798.

The Alien Enemies Act of 1798 dates back, obviously, to the time just after the end of the revolutionary war.  During the revolution France (a monarchy at the time) loaned the United States considerable sums of money to prosecute the war, as we were fighting the British.  Then in 1789 the French revolution began.  Eventually the United States decided to try to wiggle out of its debt, arguing that the loan came from the now deposed monarchy and not the current French government.  The French didn’t really agree and started to capture US flagged merchant vessels, and selling their cargo.  Eventually the US navy and marine corps were formed and the French and US had what is rather politely called the “Quasi-War”.  It is during this endeavor that the US congress passed a collection of laws aimed at French nationals residing in the country.  Some of these laws, such as the Alien Friends Act authorized the President to imprison non-US citizens that were deemed dangerous.  The Alien Enemies Act authorized the President to imprison non-US citizens if they were from a country we were actively at war with.  Finally the Sedition Act of 1798 made it a criminal act to falsely criticize the government, even for US citizens.  The sedition act was used by the government to throw several newspaper editors in jail.

The Alien Friends Act and Sedition Act sunsetted in 1801 and 1800 respectably.  The Alien Enemies Act is with us to this day, and was used both in WWI and WWII to detain non-US citizens residing in the country.

Prior to the start of WWII for the United States, the FBI headed by J. E. Hoover maintained a “Custodial Detention” list.  Essentially people who Hoover thought were enemies of the United States, and he had a pretty broad definition for this.  The Office of Naval Intelligence also maintained lists of suspicious organizations and who belonged to them.  This is the origin of the term A, B and C list.  The “A” list contained actual Japanese government officers (consulate personal, etc).  The “B” list were things like companies that made items useful for the Japanese war effort.  The “C” list was basically everything else, such as Japanese cultural organizations.  After war broke out the FBI and Navy Intelligence lists were combined and ultimately 31,899 people were detained.  Fairly detailed records of this internment exists: 17,447 were Japanese; 11,507 were German; 2,730 were Italian; and 185 of some other ancestry.  Again, note the racist skew towards applying the law mostly to those of Japanese ancestory.  After the war many of these individuals, from all nationalities, were deported.

Key point #8: If you are not a US citizen, if the government decides it is at war with your country, then you can be pre-emptively detained for your heritage.

The original Alien Enemies Act applies to you if you are not a citizen of the US and you are a “natives, citizens, denizens, or subjects” of the “nation or government” that there is a “declared war” with. After the culmination of a treaty with the nation or goverment in question is made or after the President has decided a “reasonable time” has passed, the act no longer applies.  The court has not decided what a “reasonable time” is, and in 1948 in the Ledecke v. Watkins case decided the act exists even after the cessation of hostilities.  In that case, a German national was still being held prisoner by the US on Ellis Island, yes that Ellis Island with the Statue of Liberty on it.  The court ruled by 5-4 his detention and deportation was still lawful because there was still a “declared war”.

Summary of Part 2

In this section we’ve explored older aspects of US history and law.  We’ve found that our institutions, courts, executives and legislators, have stretched and pulled the constitution to serve them and the times.  Some of these stretches, such as the idea of judicial review, we hold dear to this day.  Others, such as the ability to preventably detain US citizens in times of war because of your heritage, we consider a stain on our history.  And still others, such as the lack of civil rights for non-citizens in times of war divide us still.  Ultimately we depend on our courts to protect our basic liberties.  But in times of crisis even that notable institution can either be ignored by the executive or will fail us outright.