|DECLASSIFIED BY SP-1 CSK/PSK
203421 per GSA memo 8/28/80
WAR RELOCATION AUTHORITY
OPINION NO. 1
April 15, 1942
To: M. S. Eisenhower, Director, War Relocation Authority
From: The Solicitor
Subject: The first of a series of memoranda discussing the constitutional bases of the program of the War Relocation Authority
The War Relocation Authority has been authorized and directed by the President to formulate and administer a program for the removal and for the relocation, maintenance and supervision of persons who are ordered by the War Department to depart from military areas. The War Department has ordered the evacuation from the West Coast area of all Japanese. Those persons against whom there is sufficient evidence to warrant arrest for a specific offense will be taken into custody by the Federal Bureau of Investigation or other appropriate agency. It will be the responsibility of the War Relocation Authority, however, in cooperation with the War Department, to provide protection and supervision for all other evacuated Japanese.
"Reading bulletins in Japanese language in 'Little Tokyo' when residents of
Japanese ancestry were instructed to evacuate." (Los Angeles, 04/11/1942)]
Among the compelling reasons for the decision that all evacuated Japanese should be placed under the surveillance and protection of the Federal Government, rather than merely excluded from designated military areas, is the necessity of the action (1) as a precautionary measure to prevent sabotage and espionage, (2) to assist the Army in guarding against infiltration tactics in the event of an attack on the West Coast, (3) to protect the evacuated Japanese from mistreatment, (4) to prevent the creation of serious local disturbances and police problems as a result of the haphazard and undirected resettlement of the evacuated Japanese, and (5) to prevent the creation of situations and the occurrence of incidents that may be used as propaganda in this country and in foreign countries against the war effort of the United States.
In Great Britain, the problem of detaining persons whose detention is considered necessary for the safety of the realm arose early in the war, and it was dealt with expressly by statute and administrative order. The Emergency Powers (Defense) Act, enacted on August 24, 1939, 2 & 3 Geo. VI, c. 62, authorized the King, by Orders in Council, to make regulations which he believed
"necessary or expedient for securing the public safety, the defense of the realm, the maintenance of public order and the efficient prosecution of the war in which his Majesty may be engaged, and for maintaining supplies and services essential to the life of the community" (Sec. 1),and to make provision
"for the detention of persons whose detention appears to the Secretary of State to be expedient in the interests of the public safety or the defense of the realm." (Sec. 2(a))The Act was amended on May 22, 1940, by the Emergency Powers (Defense) Act, 1940, 3 & 4 Geo. VI, c. 20 (Mr. Atlee's bill) to provide that the powers given in the 1939 Act include the power of the King, through Orders in Council,
"to make such Defense Regulations, making provision for requiring persons to place themselves, their services, and their property at the disposal of His Majesty, as appear to him to be necessary or expedient for securing the public safety, the defense of the Realm, the maintenance of public order or the efficient prosecution of any war... or for maintaining supplies or services essential to the life of the community."Pursuant to this authority, Regulation 18B provides:
"If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety or the defense of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained."In Canada, the War Measures Act, Revised Statutes of Canada, 1927, c. 206, was brought into effect by the proclamation of a state of war, and pursuant to its provisions the "Defense of Canada Regulations" were promulgated on September 3, 1940. Regulation 21 provides:
"The Minister of Justice, if satisfied, that with a view to preventing any particular person, from acting in any manner prejudicial to the to the public safety or the safety of the State it is necessary so to do, may,... make an order... directing that he be detained in such place, and under such conditions, as the Minister of Justice may from time to time determine;... and any person shall, while detained by virtue of an order made under this paragraph, be deemed to be in legal custody."Although these regulations indicate that the governments of Great Britain and Canada believe that the right to detain persons suspected of dangerous activity is necessary under conditions of modern warfare, neither Government needed to consider the constitutional doctrines that are written into the American constitution as safeguards to personal liberty and the right of property. At your request, we are preparing and will issue a series of memoranda discussing in considerable detail the constitutional bases of the program of the War Relocation Authority. This memorandum should be regarded as the first of the series, and it will be supplemented by memoranda on the following subjects:
2. The extent to which persons of Japanese ancestry may validly be detained, or their movements restricted, under exercise of the war power.
3. The authority of the President to detain citizen Japanese without further action by Congress.
4. The authority to require evacuees to perform useful work.
5. The enforcement of War Relocation Work Corps enlistment contracts.
6. Voluntary enlistment in the Army and assignment of enlistees to serve in a Work Corps.
7. Induction of Japanese under the Selective Service Law for service in a Work Corps.
8. A summary of the conclusions expressed in this series of memoranda.
The discussion of basic constitutional doctrines in this series of memoranda will, of course, be undertaken in the light of present day circumstances. We are engaged in total warfare. The stakes are more than mere trade and empire; they involve the survival of our liberties and of our form of government. If our democracy is to survive, our constitution must prove adaptable to the needs of the times. It has met that test in the past and there is no reason to believe it will not do so today. Standard concepts of constitutional law will therefore undoubtedly be applied in the light of current war needs. That such application must always be made is itself one of the most fundamental of our constitutional doctrines.
We shall attempt to appraise the probable reaction of the courts to specific problems in the light of modern methods of warfare. Since these methods are revolutionary in character, however, it is difficult to anticipate with any degree of certainty the extent to which the courts may see fit to modify the language or conclusions of cases decided under conditions far less urgent and dangerous than the present. Much will depend on the time and the circumstances under which a problem is litigated.
In the following memoranda, therefore, when a conclusion is reached that a proposed action by the War Relocation Authority is of doubtful legality, it should be understood that the conclusion is always subject to the possibility that war time considerations may cause the courts to take a radically different approach than the one we anticipate. A conclusion of doubtful authority, therefore, need not necessarily preclude further consideration of a proposed action, if the action is believed to be essential.
(signed Philip M. Glick)
WAR RELOCATION AUTHORITY
OPINION NO. 2
April 15, 1942
To: The Director
From: The Solicitor
Subject: The extent to which the Japanese may validly be detained, or their movements restricted, under an exercise of the war power
This memorandum is the second of a series of memoranda discussing initial problems arising in connection with the work of the War Relocation Authority. It deals with the constitutionality of detaining Japanese at relocation centers after their evacuation from the West Coast.
A. The constitutional validity of wartime restraints upon persons in the United States.
Citizens may be detained, or other restraints placed upon them, to whatever extent is reasonably necessary to the national safety in wartime. The war power to that extent overrides the constitutional guaranties in the Bill of Rights. Whether there is a real danger to the national safety and whether the restraint is a reasonable one for the purpose of meeting that danger are factual questions ultimately determinable by the courts.
Alien friends are protected against wartime restraints to the same extent as are citizens.
Alien enemies enjoy no rights of liberty in time of war, and under the Alien Enemy Act the President has absolute control over the manner and degree of their detention.
Citizens. The position has been taken that the war power is complete in itself and is independent of the Bill of Rights. See Fletcher, The Civilian and the War Power, 2 Minn. L. Rev. 110 (deploring the narrow field for the application of martial law as prescribed by the majority of the Supreme Court in Ex Parte Milligan, 71 U. S. 2 (1866)). The accepted theory, however, is that the war power and the Bill of Rights, like all other provisions of the Constitution, must be construed so as to limit each other. Otherwise (as pointed out in the Milligan case), in any war, no matter how small or how distant, Congress could put the whole country under a military dictatorship.
In the Milligan case, the Supreme Court held that neither the President nor Congress could constitutionally invoke martial law or give exclusive jurisdiction over civilians to military tribunals in time of war except in areas where the civil courts were closed or the exercise of their jurisdiction obstructed, and that any such attempt would violate the 4th, 5th, and 6th amendments, dealing with right to a jury trial, due process of law, confrontation of witnesses, assistance of counsel, and the like. "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" (120-121). In United States v. L. Cohen Grocery Co., 255 U. S. 81 (1921), the provision of the Food Control Law of 1917, making it unlawful "to exact excessive prices for any necessaries", was held to violate the provisions of the 5th and 6th amendments in delegating legislative power, penalizing indefinite acts, and depriving citizens of the right to be informed of the nature of accusations against them. The Court said (88-89): "We are of the opinion that the court below was clearly right in ruling that the decisions of this court indisputably establish that the mere existence of a state of war could not suspend or change the operation upon the power of Congress of the guaranties and limitations of the Fifth and Sixth Amendments as to questions such as we are here passing upon... It follows that, in testing the operation of the Constitution upon the subject here involved, the question of the existence or the non-existence of a state of war becomes negligible, and we put it out of view." The Court was concerned with the lack of procedural guaranties in the particular statute, not with the validity of price control as a war measure.
The Bill of Rights, however, does not prevent Congress from applying restrictions upon individual action where those restrictions are reasonably calculated to preserve the national safety -- restrictions which in peace time might constitute an invasion of civil liberties. Thus, in Schenk v. United States, 249 U.S. 47 (1919), the Supreme Court upheld the validity of the Espionage Act against the contention that it violated the 1st amendment, saying (52):
"We admit that in many places and 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. Aikens v. Wisconsin, 195 U. S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 418, 439. 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 utterances will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right."See also Frohwerk v. United States, 249, U. S. 204, 206 (1919); Abrams v. United States, 250 U. S. 616, 627-628 (1919).
Compelling military service is a proper exercise of the power of Congress to raise armies, and does not create an involuntary servitude in violation of the 13th amendment. Selective Draft Law Cases, 245 U. S. 366 (1918). Religious convictions do not relieve an individual from obedience to a law requiring flag salute in the schools that is not aimed at promotion or restriction of religious beliefs but at increasing an understanding of political responsibilities. Minersville School District v. Gobitis, 310 U. S. 586 (1940). On the authority of this case, it would appear that when the far greater interest of national existence itself is at stake the Court would not hesitate to uphold any measure restraining religious liberty -- or any other liberty -- where the measure is a reasonable one for the purpose of meeting existing dangers.
The war power has been likened by the Supreme Court to the police power of the States. The War-Time Prohibition Act prohibited the sale of distilled spirits for beverage purposes and the removal of distilled spirits held in bond except for export purposes from a date approximately seven months after the date the law was approved and until "the conclusion of the present war and thereafter until the termination of demobilization." In Hamilton v. Kentucky Distilleries Co., 251 U. S. 146, (1919), the Court held that the law did not violate the Fifth Amendment by taking private property without compensation, since the Court could not say that the seven months period in which to dispose of liquor stocks was unreasonable. With respect to the exercise of the war power in this manner, the Court said (156-7):
"That the United States lacks the police power, and that this was reserved to the States by the Tenth Amendment, is true. But it is none the less true that when the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a State of its police power, or that it may tend to accomplish a similar purpose... The war power of the United States, like its other powers and like the police power of the States, is subject to applicable constitutional limitations...; but the Fifth Amendment imposes in this respect no greater limitation upon the national power than does the Fourteenth Amendment upon state power... If the nature and conditions of a restriction upon the use or disposition of property is such that a State could, under the police power, impose it consistently with the Fourteenth Amendment without making compensation, then the United States may for a permitted purpose impose a like restriction consistently with the Fifth Amendment without making compensation; for prohibition of the liquor traffic is conceded to be an appropriate means of increasing our war efficiency."It is well established that any measure that has a substantial relationship to promotion of the health, safety, or general welfare of a State may be properly undertaken as an exercise of the State police power, and that the constitutional limitations against the deprivation of liberty and property without due process of law do not apply in such a case.
Upon the basis of past Supreme Court decisions, therefore, the restraints upon citizens under an exercise of war power may be justified if they appear to be reasonably necessary to the national safety. It also follows, under ordinary constitutional law doctrines, that restraints may discriminate between certain classes of persons, so long as the classification is related to a genuine war need and does not under the guise of national defense discriminate against any class of persons for a purpose unrelated to the national defense.
According to more recent cases, the courts will give great weight to the legislative determinations of need, and will not substitute their judgment for that of the law-making authority in doubtful cases. Nevertheless, in the final analysis, the reasonableness of any restraint is a matter for determination by the courts, and it is important, from considerations of constitutionality as well as of statemanship, to weigh carefully the elements of need and the reasonableness of the measures proposed to meet that need. These elements are primarily matters of fact and of balanced judgment.
Alien friends. It is well settled that aliens are always subject to the power of Congress to expel them, or to order them to be removed and deported from the country, whenever in its judgment their removal is necessary or expedient for the public interest. Fong Yue Ting v. United States, 149 U. S. 698 (1892). It appears to be equally well settled, however, that alien friends residing in the United States, so long as they are permitted to remain in the country, are entitled to the safeguards of the Federal Constitution with respect to their rights of person and of property and to their civil and criminal responsibility. The Federal courts have uniformly interpreted the word "person" as used in the Constitution to include all individuals and not merely citizens.
Thus, in Yick Wo v. Hopkins, 118 U. S. 356 (1886), the Supreme Court held that discrimination against Chinese alien residents in the application of a municipal ordinance requiring the licensing of laundries was a violation of the Fourteenth Amendment, saying:
"The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: 'Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws... The questions we have to consider and decide in these cases, therefore, are to be treated as involving the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court."In Wong Wing v. United States, 163 U. S. 228 (1895), the Supreme Court held that a Federal statute providing for the imprisonment at hard labor of any Chinese person adjudged not to be lawfully entitled to remain in the United States, without a right to trial by jury, violated the Fifth and Sixth Amendments, saying:
"...all persons within the territory of the United States are entitled to the protection guaranteed by those amendments, and... even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty or property without due process of law."Justice Field, in a separate opinion in the case, wrote:
"The term 'person', used in the Fifth Amendment, is broad enough to include any and every human being within the jurisdiction of the republic. A resident, alien born, is entitled to the same protection under the laws that a citizen is entitled to. He owes obedience to the laws of the country in which he is domiciled, and, as a consequence, he is entitled to the equal protection of those laws. This has been decided so often that the point does not require argument."In Russian Fleet v. United States, 282 U. S. 481 (1930), an alien Russian brought suit to recover compensation for the requisitioning by the United States Fleet Corporation of contracts for the construction of two vessels. The Supreme Court held that the plaintiff was an alien friend and as such was entitled to the protection of the Fifth Amendment and to just compensation for the property requisitioned.
It may be noted that numerous treaties between the United States and foreign countries specifically provide for the protection of the person and property of the nationals of one country while residing in the other. See Gibson, Aliens and the Law (1940), Appendix A. A treaty may, however, be repealed or modified by Congress at any time. Head Money Cases, 112 U. S. 580 (1884); Fong Yue Ting v. United States, supra. According to the Supreme Court decisions discussed in the preceding paragraphs, however, alien friends have inherent constitutional rights that Congress cannot affect.
Alien enemies. The Alien Enemy Act (50 U.S.C. 21-24) provides in part that "whenever there is a declared war between the United States and any foreign nation or government... all natives, citizens, denizens, or subjects of the hostile nation or government... who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies." The President is expressly given power to establish "regulations which are found necessary in the premises, and for the public safety."
Under the act, the President's power to establish regulations for apprehending and restraining alien enemies in wartime is almost unlimited. He may not only remove them from the United States, he may order them confined or restrained in the United States, and the manner and degree of restraint lies in his discretion. Lockington's Case, Bringhtly (Pa.) 269. He need not resort to the courts to enforce his regulations, and his detention of enemy aliens is not subject to court review except upon the question of whether the persons detained are actually enemy aliens. Ex Parte Fronklin, 253 Fed. 984 (N.D. Miss. 1918); Minetto v. Bradley, 252 Fed. 600 (N.D. Ill. 1918); Ex Parte Gilroy, 257 Fed. 110 (S.D.N.Y. 1919). The burden of proof is upon the alien to prove that he is not an alien enemy. Ex Parte Risse, 257 Fed. 102 (S.D.N.Y. 1919); Ex Parte Gilroy, supra.
It is generally considered that whatever rights are given to alien enemies are purely by way of grace. In DeLacey v. United States, 249 Fed. 625 (C.C.A. 9th, 1918), the defendants, indicted for conspiracy to aid two alien enemies to escape from custody, urged that the Alien Enemy Act was unconstitutional in that it violated the right to due process of law. In upholding the constitutionality of the act, the court said:
"While as to property rights and life and liberty, all aliens domiciled in the United States, or temporarily therein, are accorded the equal protection of the law and due process of law, such is not the case as to alien enemies. 'Alien enemies have no rights and no privileges unless by special favor during time of war.' 2 C.J. 1047. Such was the common law. 'Alien enemies have no rights and no privileges, unless by the king's special favor during time of war.' 1 Blackstone 372. There is nothing in the Constitution and laws of the United States which in any way has changed the common law rule or restricted the power of Congress to enact the alien enemy act."In view of the foregoing discussion, it appears that alien enemies enjoy no civil rights in wartime, and the President has absolute discretion in detaining them and directing their activities.
B. The extent to which Japanese may validly be detained or their movements restricted under an exercise of the war power.
Japanese aliens are alien enemies and and enjoy no civil rights, and the President has absolute control over the manner and degree of their detention.
Citizen Japanese may be detained or otherwise restrained to the extent reasonably necessary for the national safety, and other classes of citizens need not be affected by such restraints if the discrimination can be shown to be related to a genuine war need and does not, under the guise of national defense, discriminate for a purpose unrelated to the national war effort.
The chances are good that the courts will sustain the detention of Japanese at relocation centers. This judgment is based partially on the facts indicating that unrestricted movement of Japanese may interfere with the war effort and partially on the fact that the judgment of the military as to steps needed to protect the national security will not be lightly set aside by the courts in time of war.
The chances are very good that the detention of Japanese at relocation centers will be sustained if sufficient flexibility is provided to permit the Japanese some freedom of movement in certain circumstances and under special precautions. The absolute detention of all internees until a restricted-travel procedure has been worked out would be warranted.
Since Japanese aliens are alien enemies, the President has authority under the Alien Enemy Act to apprehend them and detain or restrain them in any manner he sees fit.
Most of the Japanese now being evacuated from the West Coast by the military are American citizens. According to the present plans, these citizen Japanese will be detained for the duration in projects established for the express purpose of segregating them and providing them with useful employment. Whether or not the courts will sustain this detention as a valid exercise of the war power against the contention that it takes away the liberty of citizens without due process of law and that is unreasonably discriminates against Japanese depends upon the existence of facts showing that the separate treatment of the Japanese in this manner is related to a genuine war need and is reasonably necessary to meet that need.
Facts which support the reasonableness of the detention fall into several different categories:
1. Prevention of violence and maintenance of orderly government. It is a fact that in many parts of the country, and particularly in the West, persons of Japanese extraction are in danger of their lives. Violence and threats of violence are of everyday occurrence. Voluntary migration of Japanese from the West Coast to small Japanese settlements inland has created unrest in the communities -- unrest that is causing municipal authorities to state to Federal officials that they cannot be responsible for the safety of the Japanese. Unrestricted movement of the Japanese may well lead, therefore, to bloodshed and riot that cannot be readily controlled by police protection. Should there be war reverses in the Pacific and should war hysteria mount as it did in the first World War, the probability of widespread disorder where numerous Japanese are resident would be great. Precautionary measures to forestall that probability, without waiting for it to become an actuality, would be reasonable if the prevention of the consequent disorder could be shown to be related to the war effort.
Thousands of Americans are now prisoners of war of Japan. The number may well increase before the war is over. Harsh treatment of Japanese in this country may and probably will lead to still harsher retaliatory measures against American prisoners in Japanese hands. Again, violence against Japanese would furnish excellent food for Japanese propaganda expected to be used in India and other Asiatic countries for the purpose of demonstrating that this is a racial war. We cannot overlook the effectiveness of propaganda of this sort as a very lethal weapon. Furthermore -- from the standpoint of our own immediate problem of war production -- riots and community unrest, especially in vital defense localities and war production areas but to some extent in any part of the country, would tend to hamper the war effort through interference with war production or other industrial or commercial activity, or through the degeneration of morale.
It is clearly reasonable to take such measures as may be necessary to reduce to an absolute minimum the chances of violence against Japanese. The detention of the Japanese at relocation centers would be justified, at least until the War Relocation Authority can be assured that Japanese migrating from the centers will be adequately protected against violence.
2. Reducing danger of infiltration by Japanese troops. A resident Japanese cannot well be distinguished from a disguised Japanese soldier landed by parachute or from small boats along the coast. It would be possible for Japanese troops, by mingling with Japanese residents, to concentrate in areas of strategic importance. If the possibility of invasion is present (and recent events on the West Coast clearly show the possibility), the removal of all Japanese from vital defense localities, and restrictions on their movements in other areas within range of feasible sea or air attack, is undoubtedly justified. The War Relocation Authority would similarly be justified in taking whatever measures might be necessary to prevent Japanese in relocation centers from returning or migrating to those areas.
It would be more difficult to justify, on this ground alone, a prohibition against movement to other parts of the United States. The justification here would have to hinge upon the future possible danger of the extension of areas subject to feasible attack after an initial successful invasion, rather than upon the probable present danger of a coastal invasion. The power to restrain Japanese from migrating to areas subject to present danger of invasion would, however, be sufficient to justify the establishment of a control system under which internees would be permitted to travel only under special license, since without such a control there would be no way of assuring non-migration to those areas.
3. Prevention of sabotage and fifth column activities. The third and most important basis for detaining Japanese as such depends upon the existence of facts showing disloyalty or probability of disloyalty among them to an extent justifying the special precaution. If there is evidence (a) that, as a class, Japanese are much more likely to engage in sabotage and fifth column work than any other class of residents, (b) that it is impossible in advance to distinguish between the loyal and the disloyal, and (c) that there is serious present danger from the free and uninhibited movement of the disloyal, it would be reasonable to take preventive measures against all citizen Japanese and thus to distinguish between them and other American citizens.
a. Evidence that there is sufficient likelihood of disloyalty among the Japanese to distinguish them from other citizens would probably fall under the following headings:
(1) Evidence that the Japanese Government attempts to maintain control over all persons of Japanese extraction residing in foreign lands. It is the Japanese Government's position that Japanese nationality is superior to all foreign citizenships, and that all persons of Japanese extraction, as Japanese nationals, are liable to military and other service for Japan. It is also understood that foreign born Japanese are encouraged to educate their children in Japan; that Japanese consulates keep close check on all person of Japanese extraction and attempt to strengthen their ties to Japan; that emigration of loyal Japanese to foreign countries in the Pacific orbit is an established policy of the Japanese Government; and that Japanese-controlled businesses in foreign countries are often subsidized for the purpose of furthering control over business and industrial interests.
If the various items of evidence set forth above can be well substantiated by documents and testimony, it can clearly be established that there is a greater likelihood of disloyalty among citizen Japanese than among American citizens as a whole.Collateral factors entering into a judgment on the question of judicial sanction to the detention of Japanese internees. There are additional collateral factors which tend to support a judgment that detention of Japanese internees will be sustained by the courts:
1. The constitutionality of detaining citizen Japanese will not be tested on the single ground of preventing disorder, or of reducing the danger of infiltration, or of counteracting sabotage, but on all three grounds. Even if the facts as to any one or more of them should not entirely remove a doubt as to the necessity of detention, their cumulative effect should be sufficient.Advantages of a control system permitting restricted travel. In this discussion we have concluded that the detention of Japanese in relocation centers would probably be sustained by the courts as reasonably necessary to meet war needs. We should not, however, overlook the fact that a large majority of the evacuees are probably loyal Americans; that there will be many cases of individual hardship if no Japanese is permitted to leave a relocation center under any circumstances; and that the shifting fortunes of war may lessen the military necessity for strict detention from time to time.
A supplementary device under which restricted travel is permitted would, therefore, seem administratively desirable. It would also strengthen our position on the constitutional issue. Even if a court felt that it could not conscientiously uphold absolute detention on the basis of the evidence presented, it would be quite difficult for the court to say that the facts did not justify the detention of all until those who wished to leave could present their cases, and administrative judgments could be made upon the merits of each case in relation to the national safety. Furthermore, in cases where the privilege of travel has been sought and denied under such a procedure, a court would very likely give the judgment of the administrative people considerable weight in determining whether continued detention is warranted.
There may be an additional advantage. As a general rule, courts will refuse to entertain jurisdiction over a case until the complainant has exhausted his administrative remedies. If there is an administrative procedure under which the detention restraint may be lifted as to individual Japanese, a court may well refuse to grant relief against detention until the administrative remedy is exhausted.
Again, if litigation should arise over the constitutionality of detention before a restricted-travel procedure is worked out -- but we should nevertheless be able to point out that we were preparing such a procedure -- a court doubting the constitutionality of indefinite detention would be more inclined to sustain detention until the procedure is established than to resolve the issue against the Government, in view of the possible serious consequences of unregulated movement of the Japanese.
(signed Philip M. Glick)
WAR RELOCATION AUTHORITY
OPINION NO. 3
April 16, 1942
To: The Director
From: The Solicitor
Subject: Authority of the President to detain citizen Japanese without further action by Congress
This memorandum, the third in a series of memoranda concerning initial problems confronting the War Relocation Authority, will discuss the present authority of the President to authorize the Director of the War Relocation Authority to detain Japanese, without further action by Congress. The constitutionality of such action, if duly authorized, has been discussed in the second memorandum of this series.
Whether the courts will sustain indefinite detention of citizen Japanese by the President, in the absence of legislation authorizing the President to effect such detention, cannot be predicted with certainty. The decision of the court will depend on the strength of the showing to be made that the action was dictated by military necessity which required the President to act in order to fulfill his obligations as Commander-in-Chief of the armed forces.
If detention is undertaken only as an interim measure, to give Congress an opportunity to pass legislation on the subject, the chances of court approval, against an argument that the President is exercising legislative power, will be considerably improved.
If it is decided to detain citizen Japanese indefinitely without seeking further legislation, it would be advisable to designate each project as a military area pursuant to Executive Order No. 9066. If such action is taken, the detention will have a measure of legislative sanction in the form of the recent statute providing a criminal sanction against violation of regulations applicable to military areas.
I. Pursuant to existing statutes. Existing legislation expressly authorizes detention of enemy aliens (50 U.S.C. 21). However, there is no statute containing a direct authorization for the detention of citizens not charged with any offense. The possibility of detaining citizens within military areas or zones, to leave which may be a crime under the Act of March 21, 1942 (Pub., No. 503, 77th Cong.), will be discussed below.
II. As Commander-in-Chief of the Army and Navy. An existing statute (18 U.S.C. 96) authorizes the President to establish "defensive sea areas", and to promulgate orders and regulations governing persons and facilities within the limits of defensive sea areas.
On February 19, 1942, in Executive Order No. 9066 the President authorized "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 restriction the Secretary of War or the appropriate Military Commander may impose in his discretion." There is no statute authorizing the establishment of such "military areas" as in the case of "defense sea areas", but the President took this action by virtue of the authority vested in him as "President of the United States, and Commander-in-Chief of the Army and Navy". Pursuant to this Executive Order, citizens of Japanese extraction have been excluded from any areas prescribed as "military areas".
On March 21, 1942, Congress provided by statute as follows (Pub., No. 503, 77th Cong.):
"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, it if 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 or not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense."This statute in no way indicates that Congress was in doubt with respect to the authority of the President to establish military areas or zones and exclude "any and all persons", which necessarily includes citizens, therefrom. The statute rather assumes, and therefore confirms, that the President has this authority and goes on to make it a crime to violate the "restrictions" applicable to military areas or zones or an "order" issued with respect thereto. It will be assumed, therefore, that, as Commander-in-Chief of the Army and Navy, the President had the authority to exclude citizens of Japanese extraction from the areas in which this was done. If the President as Commander-in-Chief of the Army and Navy can take such action, can he go further and detain citizens of Japanese extraction? A careful examination of the reasons which justify the action taken under Executive Order No. 9066 will assist in answering this question.
The Constitutional designation of the President to be the Commander-in-Chief of the Army and Navy confers no general legislative powers upon him. However, as Commander-in-Chief, he can take such actions as are reasonably necessary to enable him to execute that role in an effective manner. Acts of such character need not be expressly authorized by statute. For example, no statute is needed to authorize the President to provide for the transportation of the armed forces to a particular place.1 Obviously, a statute is not needed to put into effect a plan of strategy which the President as Commander-in-Chief has decided upon for the conduct of a war. To do this is an inherent authority of the Commander-in-Chief. This authority is analogous to authority which the President may exercise merely because the Constitution vests in him the Executive power of the United States, which was discussed in the case of In Re Neagle, 135 U.S. 1 (1889).
The life of Mr. Justice Fields of the Supreme Court of the United States has been threatened on account of the outcome of certain litigation. A United States marshal was assigned to protect the Justice while traveling and holding court in his circuit.2 The Justice was attacked and the marshal killed the attacker. The marshal was then taken into custody by law enforcement officials of the State of California and charged with murder. The question presented was whether it was proper for the Federal Court to order the release of Neagle (the United States marshal) on a writ of habeas corpus. This in turn depended on whether the duties being performed by Neagle at the time the attacker of Justice Fields was killed were authorized. They were not authorized specifically by any statute but the court concluded they were a proper exercise of the Executive power, since the conference of Executive power by the Constitution on the President imposes obligations upon him and by implication authorizes such acts as are, by the nature of things, necessary to permit him to fulfill these obligations. The reasoning of the court is illustrated by the following excerpts from the case:
"...The Constitution, section 3, Article 2, declares that the President 'shall take care that the laws be faithfully executed,' and he is provided with the means of fulfilling this obligation by his authority to commission all the officers of the United States, and, by and with the advice and consent of the Senate, to appoint the most important of them and to fill vacancies. He is declared to be commander-in-chief of the army and navy of the United States. The duties which are thus imposed upon him he is further enabled to perform by the recognition in the Constitution, and the creation by acts of Congress, of executive departments, which have varied in number from four or five to seven or eight, the heads of which are familiarly called cabinet ministers. These aid him in the performance of the great duties of his office, and represent him in a thousand acts to which it can hardly be supposed his personal attention is called, and thus he is enabled to fulfill the duty of his great department, expressed in the phrase that 'he shall take care that the laws be faithfully executed.'Just as the grant of Executive power to the President by the Constitution authorizes him to take certain actions without express legislative authority from Congress, so the President as Commander-in-Chief, merely because he has been designated the Commander-in-Chief by the Constitution, can take certain actions. It is only reasonable to assume that among the actions he can so take are such measures as are reasonably calculated to insure the maintenance of the Army and Navy as fighting forces. Such maintenance includes the protection of personnel, military establishments, supplies, and all means of producing supplies. Such is the nature of the action taken by Executive Order No. 9066. This appears from the opening paragraph of the order which recites that "the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense utilities." It is this that justified the exclusion of citizens of Japanese extraction from military areas and zones prescribed pursuant to the order.
The factual background against which the action was taken can be described as follows [placed into list format for ease of reading]:
Now what happens after the Japanese are excluded from the area? They are now out of the areas where they can be of maximum assistance to the enemy. The need for protection of the country against disloyal Japanese still exists, however, after they are removed, for military and naval establishments in connection with which espionage and sabotage is possible exist all over the country. Also, all over the country defense production is going on and defense materials may be found. Modern war is total war, in which practically every major class of production is vital to the war effort. It is clear, therefore, that many opportunities for espionage and sabotage will be available to the Japanese no matter where they are located. In addition, there are the problems of avoiding civil rioting and disturbance, particularly after each military reversal sustained by our armed forces, if the evacuees are permitted to disperse all over the United States. This may mean that the only really effective means the Commander-in-Chief has to safeguard the personnel of the army and military supplies from espionage and sabotage on the part of the Japanese, and to protect the effectiveness of our war effort on the production line and elsewhere, is to detain them under surveillance. If this can be shown, the action is reasonably calculated to carry out the obligations imposed on the President by the Constitution in designating him as Commander-in-Chief, and hence might be held to be authorized. The action would differ from that taken in excluding the Japanese, though citizens, from military areas and zones only in degree. This only means that it might be somewhat more difficult to show that the situation was such as to justify the President in taking the action as Commander-in-Chief. It does not mean such a justification cannot be shown.
It should also be noted that action by the President, as President of the United States or as Commander-in-Chief of the Army and Navy without legislative sanction of Congress, may often be justified on the ground that the obligations imposed by the Constitution on him by vesting him with the Executive power and making him the Commander-in-Chief require that he take immediate emergency action. To wait for legislative action under some circumstances would make it impossible for him to fulfill these obligations. Therefore, he may act and then seek legislative ratification of his action. If he does seek ratification his action may also be regarded as in aid of the legislative authority of Congress, since if the President does not act without legislation in the first instance, the situation may so develop that Congress can no longer legislate as effectively. For example, if the Japanese were allowed to scatter all over the country before Congress had an opportunity to act, when Congress did act, it would be much more difficult to attain the objectives of the legislation. Thus, detention of the Japanese for a period of time to give Congress time to legislate with respect to them might be justified, even if we should assume that the courts would not uphold an indefinite detention without legislative authority.
III. Detention within a military zone. It is obvious that the language of Executive Order 9066, as quoted above, literally construed, authorizes the Secretary of War or the designated military commanders to declare the area in which a group of Japanese evacuees is situated to be a military zone. It is necessary only that the authorized official "deems such action necessary or desirable". The recitations in the opening paragraph of the Order concerning the necessity for protecting national defense premises, materials, and utilities from sabotage or espionage indicate that it was the intention of the President to declare military areas for those purposes; however, the sweeping language which appears in the body of the order is not limited to such purposes.
We believe, however, that the authority to declare military areas in which a violation of the restrictions prescribed by the Secretary of War or designated commanders would constitute a crime is limited to instances of military need. Otherwise, the authorized officials could declare the whole of the United States a military area in which the right "to enter, remain in or leave" would be subject to such restrictions as the Secretary of War, in his discretion, might prescribe. The facts reviewed above to justify the detention of the Japanese evacuees will equally justify the creation of such zones on the basis of military need.
Assuming that a military zone can be legally established, the statute which is quoted above would authorize the prescription of restrictions of the right to enter, leave, or remain within the project area. The right to restrict includes the right to regulate and restrain. That it includes the right to forbid evacuees to leave the project seems to us a reasonable interpretation.
We believe, for these reasons, that it would be advisable to request the War Department to declare each project area to be a military zone. Detention will then have been undertaken pursuant to an Executive power that has been ratified by Congress. No other direct means for detaining the Japanese has received Congressional endorsement.
We cannot, however, predict with any degree of certainty how much additional weight a court will give to the fact that an evacuee is detained in a military area established pursuant to the Executive order. As pointed out in the second memorandum of this series, the constitutionality of detaining him against his will must be justified as a war measure in any event.
(signed Philip M. Glick)
1 Congress has at times passed restrictions on the movement of the armed forces; for example, Section 3(e) of the Selective Training and Service Act of 1940 provides that "Persons inducted into the land forces of the United States under this act shall not be employed beyond the limits of the Western Hemisphere except in the territories and possessions of the United States, including the Philippine Islands." This is probably a recognition that, in the absence of any restrictions, the President has a free hand in ordering the movement of the armed forces by reason of being the Commander-in-Chief. The authority of Congress to impose such a restriction is probably predicated on Article 1, Section 8, Clause 12 of the Constitution which gives Congress authority to raise and support armies. Since Congress has such authority, it probably can impose restrictions such as the one described.
2 At the time of this case, each Justice of the Supreme Court actually held court as a circuit judge in the circuit assigned to him. This was commonly referred to as "riding the circuit".
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