I wonder what spurred passage of the 1971 law.
From the decision:
Section 4001(a) was enacted in 1971 and originated as an amendment to legislation repealing the Emergency Detention Act of 1950, former 50 U.S.C §§ 811-26 (1970), which authorized the detention by the Attorney General during an invasion, a declared war, or “an insurrection within the United States in aid of a foreign enemy” of “each person as to whom there is reasonable ground to believe that such person probably will engage in, or probably will conspire with others to engage in, acts of espionage or of sabotage.” 50 U.S.C. §§ 812(a), 813(a) (1970). Congress referred to section 4001(a) as the Railsback amendment for its drafter, Representative Railsback. The Railsback amendment emerged from the House Judiciary Committee and was opposed by the House Internal Security Committee, which offered other alternatives.Congressman Ichord, the chair of the House Internal Security Committee and the primary opponent of the Railsback amendment, argued that it would tie the President’s hands in times of national emergency or war. He characterized the amendment as “this most dangerous committee amendment” and as “depriv[ing] the President of his emergency powers and his most effective means of coping with sabotage and espionage agents in war-related crises.” 117 Cong. Rec. H31542 (daily ed. Sept. 13, 1971). Representative Ichord’s alarm stemmed from his belief that Youngstown “teaches that where the Congress has acted on a subject within its jurisdiction, sets forth its policy, and asserts its authority, the President might not thereafter act in a contrary manner.” Id. at H31544; see id. at H31549 (“I do feel that the language of the amendment drafted by [Representative Railsback] under the Youngstown Steel case would prohibit even the picking up, at the time of a declared war, at a time of an invasion of the United States, a man whom we would have reasonable cause to believe would commit espionage or sabotage.”).
No proponent of the Railsback amendment challenged Representative Ichord’s interpretation. In fact, in a striking exchange between Representatives Ichord and Railsback, he ratified Representative Ichord’s interpretation. Representative Ichord asked: “Does [Representative Railsback] believe that in this country today there are people who are skilled in espionage and sabotage that might pose a possible threat to this Nation in the event of a war with nations of which those people are nationals or citizens?” Id. at H31551. Representative Railsback responded, “Yes.” Id. Representative Ichord then asked: “Does the gentleman believe then that if we were to become engaged in a war with the country of those nationals, that we would permit those people to run at large without apprehending them, and wait until after the sabotage is committed?” Id. Railsback answered:
I think what would happen is what J. Edgar Hoover thought could have happened when he opposed the actions that were taken in 1942. He suggested the FBI would have under surveillance those people in question and those persons they had probable cause to think would commit such actions. Does the gentleman know that J. Edgar Hoover was opposed to detention camps, because he thought he had sufficient personnel to keep all these potential saboteurs under surveillance, and that they could prosecute the guilty in accordance with due process?Id. at H31551-52. Railsback also suggested to Congress that the President could seize citizens only pursuant to an Act of Congress or during a time of martial law when the courts are not open. Id. at 31755.Congress’s passage of the Railsback amendment by a vote of 257 to 49 after ample warning that both the sponsor of the amendment and its primary opponent believed it would limit detentions in times of war and peace alike is strong evidence that the amendment means what it says, that is that no American citizen can be detained without a congressional act authorizing the detention.
In addition, almost every representative who spoke in favor of repeal of the Emergency Detention Act or adoption of the Railsback amendment or in opposition to other amendments, described the detention of Japanese-American citizens during World War II as the primary motivation for their positions. Because the World War II detentions were authorized pursuant to the President’s war making powers as well as by a congressional declaration of war and by additional congressional acts, see Endo, 323 U.S. at 285-90, the manifest congressional concern about these detentions also suggests that section 4001(a) limits military as well as civilian detentions.
Finally, a statement by Representative Eckhardt demonstrates that Congress intended to require its express authorization before the President could detain citizens. He said: “You have got to have an act of Congress to detain, and the act of Congress must authorize detention.” Id. at H31555 (emphasis added by the court). Based primarily on the plain language of the Non-Detention Act but also on its legislative history and the Supreme Court’s interpretation, we conclude that the Act applies to all detentions and that precise and specific language authorizing the detention of American citizens is required to override its prohibition.