Crisis and Command: A History of Executive Power from George Washington to George W. Bush

by John Yoo

  On July 2, 1942, Roosevelt issued two executive orders. The first created the commission and gave it the authority to try any "subjects, citizens, or residents of any nation at war with the United States" who attempt to "enter the United States or any territory or possession thereof, through coastal or boundary defenses," with an effort to "commit sabotage, espionage, hostile or warlike acts, or violations of the law or war." The commission would try the defendants for violations of the laws of war, which mostly took the form of unwritten custom. FDR prohibited any appeals to the civilian courts, unless the Secretary of War and the Attorney General consented.147 His second order, in one paragraph, established the rules of procedure. The military judges were to hold a "full and fair trial" and could admit any evidence that would "have probative value to a reasonable man." The concurrence of two-thirds of the judges was required for sentencing, and any appeals had to run directly to the President himself.148

  As structured by FDR, the commissions subjected the Nazi saboteurs to a form of justice very different from that normally applied in civilian courts. The most striking departure was the absence of a jury, as guaranteed by the Sixth Amendment to the Constitution. Neither civilian criminal procedure nor the normal rules of evidence applied, and FDR made no allowances for a right to legal counsel, a right to remain silent, or a right of appeal. Another important difference was that the laws of war, which at that time remained mostly unwritten, would define the crimes. This was radically different from the civilian system, which requires that the government prosecute defendants for crimes that are clearly defined and written.

  FDR's order was of uncertain constitutionality under the law of the day. At that time, the governing case was still Ex parte Milligan. Milligan held that the government had to use civilian courts when the defendant was not a member of the enemy armed forces, and the courts were "open to hear criminal accusations and redress grievances."149 FDR created military commissions to avoid Milligan, to charge the defendants with violations of the laws of war, and to preclude any form of judicial review. Military counsel for the Nazi saboteurs challenged the constitutionality of the trial on the ground that courts were open, the defendants were not in a war zone, violations of the laws of war were not subject to prosecution under federal law, and military commissions violated the Articles of War enacted by Congress.150

  FDR was not deterred when the Supreme Court agreed to hear the defendants' case. As the Justices gathered in conference before oral argument, Justice Roberts reported that Biddle was worried that FDR would order the execution of the saboteurs regardless of the Court's decision. Chief Justice Stone, whose son was working on the defense team, said, "That would be a dreadful thing."151 While Stone did not recuse himself, Justice Murphy -- who was in uniform as a member of the army reserve -- did. Justice Byrnes, who had been serving as an informal advisor to the administration, did not. Biddle himself argued the case and urged the Court to overrule Milligan, but after two days of oral argument, the Justices decided to uphold the military commission. The great pressure on the Court is reflected in its decision to deliver a brief per curiam opinion the day after oral argument, with an opinion to follow months later.

  Commission proceedings began the day after the Supreme Court issued its order. The commission convicted and sentenced the defendants to death in three days. Five days later, FDR approved the verdict but commuted the sentences of two defendants. Roosevelt's two executive orders remained the only guidance for the commission on the rules of procedures and the definition of the substantive crimes. There was no written explanation, for example, of the elements of the violations of the laws of war, nor were procedures given, aside from the votes required for conviction and the admission of evidence.

  When the Supreme Court finally issued its opinion, it carefully distinguished Milligan. Chief Justice Stone's unanimous opinion for the Court found that Milligan applied to a civilian who had never associated himself with the enemy. The Nazi saboteurs, by contrast, had clearly joined the German armed forces. Neither the Bill of Rights nor the separation of powers barred FDR from using military courts during wartime to try enemy combatants. Congressional creation of the court-martial system and the absence of any criminal provisions to punish violations of the laws of war presented no serious obstacle. Stone read the Article of War recognizing the concurrent jurisdiction of military commissions as congressional blessing for them. The Justices decided not to address the issue that had divided them behind the scenes -- whether Congress could require the President to provide the saboteurs with any trial at all, civilian or military -- because they did not read any congressional enactment as prohibiting military commissions. If the United States were at war, and it captured members of the enemy armed forces, it could try the prisoners for war crimes outside the civilian or courts-martial systems.

  DETENTION

  iN THE WAKE OF Pearl Harbor, President Roosevelt ordered sweeping military detentions that in absolute numbers went well past Lincoln's policies in the Civil War. After the Japanese attack and the German and Italian declarations of war, FDR authorized the Departments of War and Justice to intern German, Japanese, and Italian citizens in the United States. In February 1942, for example, the government detained approximately 3,000 Japanese aliens.152 Detention of the citizens of an enemy nation had long been a normal aspect of the rules of war, and was authorized by the Alien Enemies Act (on the books since 1798). That same month, FDR went even farther and authorized the detention of American citizens suspected of disloyalty. On February 19, 1942, FDR signed Executive Order 9066, allowing the Secretary of War to designate parts of the country as military zones "from which any or all persons may be excluded."153 By the end of 1942, the government moved 110,000 Japanese-Americans to ten internment camps because they might provide aid to the enemy. Recent historical work suggests that Roosevelt took a far more active role in the detention decision than has been commonly understood.154

  There was substantial disagreement within the military and the administration on the internments.155 General John DeWitt, commander of the Fourth Army on the West Coast, initially opposed the mass evacuations of Japanese-Americans, as did officials in the Justice Department and several prominent White House aides, but by late January 1942, thinking had changed. A popular movement on the West Coast demanded removal of the Japanese-Americans to the nation's interior. It gathered momentum as the United States suffered a string of military defeats in the Pacific. It appears that the precipitating factor was the release of the Roberts Commission report on the Pearl Harbor attacks. While the commission only briefly mentioned that Japanese in the Hawaiian Islands, along with Japanese consular officials, had sent intelligence on military installations before the attacks, it "attracted national attention and transformed public opinion on Japanese Americans."156 Newspapers, California political leaders, and military officials demanded that the Roosevelt administration intern Japanese-Americans out of fear of further sabotage and espionage. Some in the War Department discounted the effect of espionage on the West Coast, and FBI Director J. Edgar Hoover dismissed claims of disloyalty.

  Cabinet members raised the issue twice with the President before the final executive order. Biddle met FDR for lunch in early February 1942 to express doubts about the need for internment, and while FDR did not make a decision at that time, he concluded the lunch by saying he was "fully aware of the dreadful risk of Fifth Column retaliation in case of a raid."157 A few days later, Stimson called President Roosevelt after learning that General DeWitt would recommend removal of Japanese-Americans on the West Coast. News that Singapore had fallen arrived the day before Stimson's call, making it unlikely that FDR would second-guess claims of military necessity. Nonetheless, Stimson -- who had his own doubts about the necessity and legality of the evacuations -- proposed three options: massive evacuation, evacuation from major cities, or evacuation from areas surrounding military facilities. Roosevelt responded that Stimson should do what he thought best, and that he would sign an exe
cutive order giving the War Department the authority to carry out the removals. DeWitt soon found the evacuations necessary on security grounds, and Stimson and Biddle agreed on a draft of the executive order, which was based on Roosevelt's constitutional authorities as Chief Executive and Commander-in-Chief. It appears that FDR based his decision solely on the military's claim of wartime necessity.

  Several scholars have observed that Roosevelt was not vigilant in protecting civil liberties, and in this case, according to one biographer, the decision was easy for him. FDR believed that the military "had primary direct responsibility for the achievement of war victory, the achievement of war victory had top priority, and 'victory'" had for him "a single simple meaning" of defeating Germany and Japan. Victory, for Roosevelt, "was prerequisite to all else."158 There was no great outcry from liberal leaders, there was no cabinet meeting or forum for debate within the administration, and the Attorney General came to agree with the War Department that the measure was legal. Recent historical work argues that the internment decision did not arise solely because of misinformation about Japanese-Americans or the pressure of events early in the war. The internments happened in part because FDR was ready to believe the worst about the potential disloyalty of Japanese-Americans.159

  Presidential consultation with Congress did not improve national security decision-making. Both Congress and the Court approved FDR's actions. In March 1942, Congress passed a bill establishing criminal penalties for those who refused to obey the evacuation orders.160 Support for the law was so broad that it was approved in both the House and Senate by voice vote with only a single speech, by Republican Senator Robert Taft of Ohio, in opposition.

  The Supreme Court did not directly address the constitutionality of the detentions until Korematsu v. United States, decided on December 18, 1944. According to the Court, the mass evacuation triggered "strict" scrutiny under the Equal Protection Clause because it discriminated on the basis of race.161 Nonetheless, the Court agreed that these wartime security measures advanced a compelling government interest, and the Court deferred to the military's judgment of necessity. According to Justice Black's 6-3 majority opinion, "[W]e are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did."162 While not disputing the deprivation of individual liberty involved, the majority recognized that "the military authorities, charged with the primary responsibility of defending our shores, concluded that the curfew provided inadequate protection and ordered exclusion." As with an earlier case upholding a nighttime curfew on Japanese-Americans in the Western military region, the Court concluded, "[W]e cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained."163

  The Court majority stressed that the Constitution afforded leeway to the executive branch during time of emergency. Justice Black agreed that the government generally could not detain citizens based solely on their race, but that was not this case. The exclusion order was necessary, Black wrote, because "the properly constituted military authorities feared an invasion of our West Coast," and their judgment was that "the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily." Although it observed that Congress supported the military's power "as inevitably it must" during wartime, the Court attached no special importance to the authorization.

  The press of circumstances required deference to military judgment. "There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short." Perhaps most important, Justice Black concluded that decisions taken during the emergency itself had to be understood in light of the information known at the time. "We cannot -- by availing ourselves of the calm perspective of hindsight -- now say that at that time these actions were unjustified."164

  Korematsu remains one of the most criticized decisions in American history, considered second only to Dred Scott on the list of the Court's biggest mistakes. The three dissenters believed that the Constitution clearly protected Japanese-American citizens from what we today would call racial profiling. The government, Justice Roberts wrote, was "convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition toward the United States."165 The dissenters did not challenge the proposition that "sudden danger" might require the suspension of a citizen's right to free movement, or that the Court owed the military broad deference during wartime, but a hypothetical did not represent the true facts of the case. Any "immediate, imminent, and impending" threat to public safety was absent.166 Justice Murphy wrote in dissent that "this forced exclusion was the result in good measure of [an] erroneous assumption of racial guilt rather than bona fide military necessity."167 The dissenters pointed out that the government presented no reliable evidence that Japanese-Americans were generally disloyal or had done anything that made them a threat to the national defense. The exclusion order relied simply on unproven racial and sociological stereotypes.

  Justice Jackson used his dissent to harmonize the role of the executive and the courts during wartime. "It would be an impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality."168 For a Commander-in-Chief and the military, "the paramount consideration is that its measures be successful, rather than legal." In words that echoed Lincoln and Jefferson, Jackson declared that the "armed services must protect a society, not merely its Constitution," and observed that "defense measures will not, and often should not, be held within the limits that bind civil authority in peace." That said, Jackson did not want to provide constitutional legitimacy to the exclusion order. There might be no limit to what military necessity would allow when courts are institutionally incapable of second-guessing the decisions of military authorities. "If we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient." Upholding the Japanese-American internment would create a dangerous precedent for the future. "The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need." A one-time-only action is only an "incident," but once upheld by the Court, it becomes "the doctrine of the Constitution." In a solution many have found unsatisfying, Jackson wanted the Court neither to bless nor block the military's enforcement of the exclusion.

  Historical research has revealed that some government officials doubted whether any real security threat justified the exclusion order. Nonetheless, the Justice Department chose in Korematsu to assert that military authorities believed the evacuations necessary because of an alleged threat against the West Coast. A companion case, Ex parte Endo, however, found that the government could not detain a Japanese-American citizen whom the government had conceded was "loyal and law abiding."169 To this day, the debate over the necessity of the measures continues, but regardless of which side one falls on in that debate, it seems clear that the internment of the Japanese-Americans in Korematsu represents a far more serious infringement of civil liberties than that which occurred in the Civil War. The first and most obvious difference is one of magnitude. FDR interned -- without trial -- about 110,000 Japanese-Americans on suspicion of disloyalty to the United States. Lincoln ordered the detention of about 12,600.

  The second difference is one of justification. FDR ordered the detention of the Japanese-Americans not because any had been found to be enemy combatants. They were interned because of their potential threat due to loyalty to an enemy nation imputed to them from their ethnic ancestry. FDR could have pursued a narrower policy that detained indivi
duals based on their individual ties to a nation with which the United States was at war. The citizens of Japan, Germany, and Italy could be interned as a matter of course, and anyone fighting or working for the enemy, regardless of citizenship, could be detained. With regard to aliens, FDR could have relied upon the Alien Enemies Act to detain natives or citizens of a hostile nation during wartime.170 FDR's internment policy did neither -- instead, it tried to sweep in people who were presumed to have loyalty to the enemy based solely on their ethnicity.

  ELECTRONIC SURVEILLANCE

  ROOSEVELT HAS BEEN described by one historian as the President most interested in covert activity other than Washington, who personally managed spies and directed the interception of British communications. During World War I, Roosevelt had served as assistant secretary of the navy, with responsibility for intelligence. During World War II, his interest in covert operations led to the establishment of the Office of Strategic Services, the forerunner of the Central Intelligence Agency.171

  Less well known are Roosevelt's actions with regard to the interception of electronic communications. The administration initially had not engaged in any wiretapping for national security purposes, as Attorney General Jackson believed that electronic surveillance without a warrant violated the Federal Communications Act of 1934. In March 1940, he issued an order prohibiting the FBI from intercepting electronic communications without a warrant. As Europe plunged into war, however, J. Edgar Hoover grew increasingly concerned about the possibility of Axis spies within the United States. Aware of Jackson's order, Hoover went to Treasury Secretary Henry Morgenthau and asked him to speak to Roosevelt to authorize the interception of the communications of potential foreign agents who might sympathize with Germany.