"The decades leading up to the Civil War provided ample crises to keep the sea of liberty choppy. More than once they threatened to swamp the ship of state altogether. The nullification crisis of 1832, the 1836 congressional gag rules on slavery-related debate, the 1856-57 agony of bleeding Kansas, and John Brown’s 1859 raid on Harpers Ferry—all severely tested the government in a rising crescendo before the greatest test of all exploded with the first shell over Fort Sumter in 1861.
With that shell burst, Lincoln found himself navigating waters for which the Constitution provided few charts; many believed it would not survive a civil war without being altered fundamentally. Between April 1861 and the convening of a special session of Congress on July 4, Lincoln moved decisively to establish the authority he needed to bring the rebellion to heel. He proclaimed a blockade of Southern ports, federalized state militias, and called for volunteers. When secessionist sympathizers in Baltimore rioted, burning bridges to prevent the passage of troops to the defense of Washington, and the Maryland legislature convened a special session to vote on secession, Lincoln suspended habeas corpus and sent troops to occupy the city. Maryland stayed in the Union, but Lincoln had had to read deeply into the Constitution to infer the powers he needed.
Not until March 1863 did Congress act to suspend habeas corpus retroactively to the beginning of the war, although early on it did take other measures aimed at the rebellion and its sympathizers: the Conspiracies Act (July 31, 1861), the First Confiscation Act (August 6, 1861), and the Treason Act (July 17, 1862). Prosecutions resulting from these laws were few. March 1863 saw the passage of the first Conscription Act to ensure the flow of manpower to the army. When resentment against conscription boiled over into the bloody New York City Draft Riots in July 1863, troops fresh from the slaughter at Gettysburg were rushed to the city to restore order. Perhaps the most far-reaching, constitutionally questionable of Lincoln’s war acts was emancipation. Often Lincoln believed himself to be on uncertain ground but hoped that “measures otherwise unconstitutional” might be tolerated because of their importance to the war effort.
Suspension of habeas corpus sparked conflict with the rabidly pro-South chief justice of the Supreme Court, Roger Taney, who believed he could best serve Southern interests from his court seat, even though the majority of justices backed the president. In the case of habeas corpus, he insisted that the writ was virtually sacrosanct, to be suspended only as a last resort in dire necessity. Lincoln queried in response, “Are all laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” Until his death in 1864, Taney battled the administration in an effort to hamstring the government.
One of the biggest areas of controversy involved the military courts that appeared around the North. There were more than thirteen thousand Northern civilian arrests for “disloyal activities” during the Civil War, ranging from opposition newspaper editors, Democratic politicians, and other critics of the war effort to—in a throwback to Luther Baldwin and the 1798 Sedition Act—a man who was arrested for calling Lincoln a “damned fool.” Most detentions were kept short-lived by the administering of an oath of allegiance, but there were those who languished under Kafkaesque conditions in military prisons.
The most famous civilian arrest was that of Clement L. Vallandigham, a Copperhead and ex-congressman violently opposed to the war. Arrested in May 1863 for his anti-war public speeches and Southern sympathies, he was sentenced by military tribunal to imprisonment for the war’s duration. Lincoln changed his sentence and banished him to the South, but the following year Vallandigham made his way back to Ohio and appealed his conviction to the Supreme Court. The court refused to interfere, but the question of what limits if any existed on wartime dissent was hotly contested for the duration of the war. “[T]he safety of the nation is the supreme law,” claimed the New York Times; the Empire State’s Democratic Governor Horatio Seymour countered, “War does not extinguish liberty.”
If the war years were terra incognita, Reconstruction was worse. As soon as Southern territory came under Federal military occupation, new questions arose as to the status of the rebellious states, of the Constitution, and of the freed slaves. The judge advocate’s office administered these territories and needed guidelines. Books such as William Whiting’s War Powers under the Constitution of the United States (1863) were written to provide them. By the middle of 1863, it was clear that civilian government would guide the military both in its handling of the occupied states and on any questions relating to civil disobedience or anti-war activities in the North. The return of the defeated South to full participation in the Union was even more complex, nor was it simplified any by continued Southern intransigence. And President Andrew Johnson’s failure to address rights issues in the restored South led to direct conflict between the military and the executive. The Thirteenth and Fourteenth Amendments (1868 and ’70) were passed in response to the Black Codes enacted in the South. Suspension of habeas corpus, the continued use of military tribunals, and, in some extreme cases, military force, kept the pot of Reconstruction boiling.
For the most part, once the war ended, a spate of revisionism set in. The government, it seemed in hindsight, had overreacted to the threat of civil unrest during the war. This was made particularly clear in the case of the anti-war activist Lambden P. Milligan. He had been sentenced to death by military tribunal in 1863, but upon his appealing the decision, Lincoln delayed the execution. After the president’s assassination, Andrew Johnson approved it. The case reached the Supreme Court in 1866, and in its landmark ex parte Milligan ruling, the court determined that military tribunals were illegal where the civil courts were open and functioning.
Early in the twentieth century, the war that was supposed to make the world safe for democracy did not—at least, not at first. Instead, it launched an era of intense repression of civil liberties. In the nineteen months that the United States actually participated in World War I, Congress gave President Woodrow Wilson widespread control over prices, rents, agriculture, manufacturing, and transportation. These powers were aimed at keeping up the pace of production needed to assure victory. But there was also a series of acts aimed at keeping dissension under wraps. The Selective Service Act not only established the draft but also authorized the arrest of anyone obstructing it. The Espionage Act targeted spies and anyone who discouraged enlistment and recruitment, fomented disobedience, or spread false information to benefit the enemy. “Undesirable” activity and “uttering, printing, writing or publishing any disloyal, profane, scurrilous or abusive language” was banned under the Sedition Act, and the Immigration Act authorized the expulsion of alien anarchists. Wilson also sought broader powers to censor the press. He did not get them, but Congress did provide for de facto censorship by granting the postmaster general extensive power to decide which publications could and could not use the U.S. Postal Service (Trading With the Enemy Act). Periodicals critical of the war tended not to get approved.
Thousands were arrested, more than a thousand convicted. Federal agents crushed the left-wing International Workers of the World trade union in a series of nationwide raids. Under the Espionage Act, Socialist Party of America founder Eugene V. Debs got a ten-year prison sentence for giving an anti-war speech. Speaking German in public and over the telephone was banned in some places, because, as the governor of Iowa said, the First Amendment did not guarantee “the right to use a language other than the language of the country.” Even the more liberal voices of the Supreme Court found that civil liberties took a back seat to national security. Charles T. Schenk was convicted for distributing anti-draft leaflets, and in hearing his appeal Oliver Wendell Holmes Jr. formulated the standard of “clear and present danger.” “When a nation is at war,” he wrote in Schenk v United States, “many things that might be said in a time of peace are such a hindrance to its effort that this utterance will not be endured as long as men fight and no Court could regard this as protected by any constitutional right.”
Organizations were founded in response to what was perceived as a broad assault on civil liberties. The National Civil Liberties Bureau (later, the American Civil Liberties Union) was founded in October 1917 to combat repression and defend the “war’s heretics.” Its broad following included supporters of the war, like one pro-war lawyer who explained, “My law-abiding neck gets very warm under its law-abiding collar these days at the astounding violation of fundamental laws which are being put over.” And in 1919, the New School for Social Research was founded in New York as a place where “free thought and intellectual integrity” could flourish in spite of the repressive atmosphere.
The war’s abuses did not end with the hostilities. The postwar cancellation of defense contracts put thousands out of work, while thousands more were being discharged from the armed forces. During 1919 there were more than four thousand strikes and lockouts. States responded by passing laws against “radicals,” a catchall phrase that in its vagueness included Communists, Socialists, immigrants, anarchists, and union members. Soviet Russia complicated matters further with its March 1919 announcement of the creation of the Comintern for the express purpose of exporting Socialist revolution to the world. A month later several dozen bombs were intercepted by the postal service; in June, eight more exploded virtually simultaneously in eight different cities.
To combat this threat, in July Attorney General A. Mitchell Palmer created the Justice Department’s General Intelligence Division, headed by J. Edgar Hoover. Telephone wiretaps began nationwide in autumn, raids in November. A series of coordinated raids in January 1920, many without warrants, netted some six thousand people nationwide. Of those arrested, many were held incommunicado for extended periods in abusive conditions, some were forced to sign false confessions, and hundreds were deported. Even so, thirty-eight people were killed when another bomb exploded on Wall Street in September 1920.
The electoral process was not exempt. In New York, five elected assemblymen were expelled from the state assembly for being Socialists. There was severe criticism, both in the press and from the public, of the action of the legislature, but the assemblymen did not get their seats back.
Palmer hoped to ride his raids right into the White House in 1920. To maintain a high profile, he predicted massive nationwide violence by radicals in May, but it did not happen. His credibility collapsed, and the raids ended. Reaction against them had begun to set in earlier. As had happened after the Civil War, federal judges, freed from the dangers of World War I, re-examined some of their wartime opinions. Less than six months after his opinion in Schenk v United States, for example, Justice Holmes virtually reversed himself in another First Amendment case. Ruled one judge, “A mob is a mob, whether made up of government officials acting under instructions from the Department of Justice or of criminals, loafers, and the vicious classes.”
The repressive tide had finally turned, and ushered into its place was a new era of respect for the Bill of Rights. During the crisis years before World War II, conscious efforts were made to avoid repeating the excesses of the Wilson years. President Franklin D. Roosevelt instructed Federal Bureau of Investigation Director J. Edgar Hoover to begin compiling dossiers on potential foreign agents, but he also promised to protect free speech. The Supreme Court recognized government’s right to self-protection, but also sent strong messages that persecution of dissent would not be tolerated. The Department of Justice created a Civil Liberties Unit in 1939. In his 1941 State of the Union Address, Roosevelt defined the four freedoms, which were broadly adopted as a shining statement of America’s mission. And in April, before America’s entry into the war, the administration produced a major celebration for the 150th anniversary of the Bill of Rights. Only Congress seemed somewhat out of step. The House of Representatives created its Un-American Activities Committee in 1938, which proceeded to find evidence of subversion everywhere.
When the war came, FDR and his administration fared well on civil liberties overall, even working to embrace citizens of Italian and German descent. But there is one great stain on the record, and that blot has been called the greatest single violation of civil liberties in American history.
The population of Japanese-Americans in America in 1941 was well over a hundred thousand, nearly two-thirds of them citizens, most living on the West Coast. After Pearl Harbor, there was no immediate backlash against them. The head of the Western Defense Command, General John C. DeWitt, labeled talk of evacuating them from the area “damned nonsense.” But within six weeks, he had changed his tune. Proclaiming, “A Jap is a Jap,” he advocated the evacuation he had earlier derided. Columnist Walter Lippmann, writing about the West Coast Japanese, declared: “Nobody’s constitutional rights include the right to reside and do business on a battlefield. There’s plenty of room elsewhere for him to exercise his rights.” On February 19, 1942, President Roosevelt issued Executive Order 9066, designating parts of the country as military areas and subject to residential and travel restrictions. Congress enacted much of EO9066 into law a month later. During that spring and summer, nearly 120,000 persons of Japanese origin or ancestry reported to relocation centers for deportation to internment camps.
The Supreme Court upheld the relocation orders, in spite of what one justice called their “melancholy resemblance” to the plight of Jews in Nazi Europe. But echoing previous benches in previous wars, the high court said that in wartime military judgment was paramount, that civilian concerns took a distant back seat. The only option left to Japanese-Americans, even according to one dissenting justice, was “submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps.” (By contrast, on Columbus Day 1942, a cheering crowd in New York City greeted the news that the Roosevelt administration had decided to drop the “enemy alien” classification on six hundred thousand Italian citizens then living in the United States.) Wrote the director of one internment camp when he filed his final report in 1946, “It was finis of a section of a chapter of history which, pray God, America neither may be called upon nor see fit to repeat.”
Inflated security concerns caused untold hardship among thousands of innocent civilians, but the atmosphere was complicated by real threats, cases that fell properly within the sphere of military justice. In 1942, eight German saboteurs landed from submarines in New York and Florida. All eight were quickly apprehended and tried by military tribunal, and six were sentenced to death. A motion for habeas corpus was denied. In the opinion of the court, the president had sufficient authority under the Constitution’s war powers to convene military tribunals; from the Revolution on, such tribunals had been used to summarily try enemy personnel. “Time out of mind it is within the power of Commander-in-Chief to hang a spy,” wrote Justice Hugo Black in denying habeas corpus to one of the saboteurs.
In 1946, captured Japanese General Tomoyuki Yamashita appealed his conviction for war crimes by military tribunal on the basis that he was denied his Fifth Amendment right to due process. This appeal, too, was denied. According to the court, Yamashita had no constitutional rights. But the war was now over, and once again, re-evaluation of wartime stands was in vogue. Two justices dissented, claiming that the Constitution followed the flag: “The grave issue raised by this case is whether a military commission…may disregard the procedural rights of an accused person as guaranteed by the Constitution. The answer is plain. The Fifth Amendment guarantee of due process applies to ‘any person’ who is accused of a crime by the Federal Government or any of its agencies.”
The legality of martial law was re-examined in a case dealing with the Hawaiian Islands. Following the start of the war, the military placed the islands under martial law. During the war years, there were no questions about the appropriateness of or the authority for its action. But barely was the war over when the validity of martial law was tested in court, and, in a decision based on ex parte Milligan, was shot down.
Hot war became cold war, brought on by a second “Red Scare.” The House Un-American Activities Committee became permanent in 1948, and the Senate spawned a blight by which the entire era came to be known: McCarthyism. Smear tactics and innuendo dropped a curtain of fear across the United States. Loyalty oaths and blacklists proliferated, and though this latest Red Scare ended with Joseph McCarthy being censured by his Senate colleagues in 1954, its impact on political and intellectual freedom reverberated into the ’60s. Yet, backlash against the McCarthy years helped fuel the fires of the civil rights and anti-war movements and gave momentum to the chaotic sixties. Once again, the pendulum had swung back.
So far, the pendulum always has swung back, and that is important to recognize when considering the current crisis and response to it. Every American generation since the Revolution has had to wrestle with complex questions about how best to defend liberty. Some believe along with Justice Robert Jackson that the Constitution is not a suicide pact, that sometimes “the laws are not adequate to their own preservation.” [which is pretty much what President Lincoln said] Others argue along with Benjamin Franklin that there are no “acceptable” limits on liberty: “They that can give up essential liberties to obtain a little temporary safety deserve neither liberty nor safety.” And writer Tunis Wortman said at the passage of the Sedition Act of 1798, “Finding criminality in the tendency of words is an effort to erect public tranquility…upon the ruins of civil liberty.” Edmund Randolph argued that parchment guarantees offered no real protection from the abuse of authority.
Though those parchment guarantees may have bent, they have never yet broken. The obviously partisan and repressive spirit of the Alien and Sedition Acts in 1798 resulted in few prosecutions and swept a new president into office on the slogan of “Jefferson and Liberty.” The military tribunals of Abraham Lincoln during the Civil War put not a single person to death. Most of the tribunals’ defendants swore a loyalty oath to the Union and quickly went free. Once the war ended, a series of hindsight legal decisions on the one hand and a flurry of (short-lived) civil liberty–oriented legislation on the other gave strength to Lincoln’s call for a “new birth of freedom.” Similarly, the repressive actions of the Wilson administration during World War I led to a new recognition of the fundamental importance of the Bill of Rights. Time and again, during the Burr secessionist crisis, the War of 1812, the Civil War, and World War II, the imposition of martial law in regions where civil courts were functioning was determined to be illegal. After the McCarthy era, the United States entered a period of civil rights and personal liberties unprecedented in history. Time and again, the Constitution has been tested by crisis, and time and again it has proven its resilience. Legitimate concern about the impact 9/11 has had or will have on our basic liberties is appropriate and important, but it is equally important to view these events and actions through the informing lens of history. The record is not spotless, but it is impressive.
The Romans had a phrase for it: “inter arma silent leges”—“in times of war, the laws are silent,” as Thomas Jefferson wrote at the time of the Burr conspiracy. But if the laws have been silent inter arma, so far they have always come back in full strength when the crisis has passed."
Ah so. The only option left to Japanese-Americans, was “submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps.”
U.S. Supreme Court
EX PARTE MITSUYE ENDO
323 U.S. 283 (1944)
Argued Oct. 12, 1944.
Decided Dec. 18, 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. Judicial Code 239, 28 U.S.C. 346, 28 U.S.C.A. 346. 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 prefected 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 certificate of questions of law was filed here on April 22, 1944, and on May 8, 1944, we ordered the entire record to be certified to this Court. It does not appear that any respondent was ever served with process or appeared in the proceedings. But the United States Attorney for the Northern District of California argued before the District Court that the petition should not be granted. And the Solicitor General argued the case here.
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, 50 U.S. C.A.Appendix note preceding section 1, has been reviewed in Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375. 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 as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (U.S.C., Title 50, Sec. 104).' 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 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.'
***
Mitsuye Endo made application for leave clearance on February 19, 1943, after the petition was filed in the District Court. Leave clearance15 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 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 inter-mountain 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. Sen. Doc. No. 96, supra, note 7, p. 4. 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 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.' Final Report, supra, note 2, pp. 43-44. 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.' Sen.Doc. No. 96, supra, note 7, p. 4. 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.
***
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 (Kiyoshi Hirabayashi v. United States, supra, 320 U.S. at pages 87- 91, 63 S.Ct. at pages 1379-1381) 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 war time 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. Kiyoshi Hirabayashi v. United States, supra, 320 U.S. at page 93, 63 S.Ct. at page 1382. 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, 63 S.Ct. 1241. 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, Sec. 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 war-time 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 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 areas 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 (Kiyoshi 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 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. 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 wellbeing. 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.
***
The judgment is reversed and the cause is remanded to the District Court for proceedings in conformity with this opinion.
REVERSED.
Mr. Justice MURPHY, concurring.
I join in the opinion of the Court, but I am of the view that detention in Relocation 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 Fred Toyosaburo Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 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, 29 S.Ct. 14, 19; 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 Fred Toyosaburo Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 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 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 was 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.