Some years ago my colleague James Fallows published a brave Atlantic cover story calling on the United States to declare victory in the War on Terrorism, rather than remaining permanently on war footing.
"As a general principle, a standing state of war can be justified for several reasons. It might be the only way to concentrate the nation's resources where they are needed. It might explain why people are being inconvenienced or asked to sacrifice. It might symbolize that the entire nation's effort is directed toward one goal," he wrote. "But none of those applies to modern America in its effort to defend itself against terrorist attack... And while a standing state of war no longer offers any advantages for the United States, it creates several problems. It cheapens the concept of war, making the word a synonym for effort or goal. It predisposes us toward overreactions ..."
Most everyone agrees, in the abstract, that a permanent war footing imperils a free society. But that truth is felt more powerfully when we're confronted with examples from history that illustrate it.
In the U.S., the internment camps set up for Japanese Americans during World War II are remembered with shame. "Yes, the nation was then at war, struggling for its survival and it's not for us today to pass judgment upon those who may have made mistakes while engaged in that great struggle," Ronald Reagan said in 1988, when a long-overdue restitution bill passed. "Yet we must recognize that the internment of Japanese Americans was just that: a mistake. For throughout the war, Japanese Americans in the tens of thousands remained utterly loyal to the United States. Indeed, scores of Japanese Americans volunteered for our Armed Forces, many stepping forward in the internment camps themselves. The 442d Regimental Combat Team, made up entirely of Japanese Americans, served with immense distinction to defend this nation, their nation. Yet back at home, the soldier's families were being denied the very freedom for which so many of the soldiers themselves were laying down their lives."
Today, I came across one of the 1942 Office of Legal Counsel memos concerning the rights of Japanese Americans. It is one of many historical OLC opinions recently published in a collection. At the time it was written, internments had already begun, and the memo is a response to a narrower question about whether Japanese Americans in the Hawaiian islands could be forcibly removed. The document nevertheless conveys a powerful reality about civil liberties in war time: The reader can't help but note, upon reading the approach, arguments, and assumptions of the memo's author, that the Constitution and the law mattered less than the fact of war.
Years later, Congress would call the actions taken against Japanese Americans "a grave injustice." Here is how an Assistant Solicitor General asked for a legal opinion in 1942 saw things:
Removal of Japanese Aliens and Citizens From Hawaii to the United States
Japanese who are aliens can be brought to the continental United States from Hawaii and interned under the provisions of 50 U.S.C. §21. This statute, however, is probably not applicable to the Japanese who are American citizens. Although not free from doubt, an argument can be made for removing Japanese who are American citizens from Hawaii to a restricted zone in the United States on grounds of military necessity. In view of the changed conditions of modern warfare, the Supreme Court would likely follow the views of the dissenting justices in Ex parte Milligan, sustaining a declaration of martial law in places outside the zone of active military operations upon a showing of military necessity for such action. From the nature and purpose of martial law, it would seem to be properly applicable to particular areas rather than to particular persons.
May 16, 1942
MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
1. Attached is a legal memorandum on the subject.
2. As a practical matter, I understand that the Army feels the problem can be satisfactorily handled by removing the Japanese citizens from Hawaii and treating them the same way as those evacuated from the West Coast.
3. If this is so, it is not necessary to pass on the legal questions which you put. I should think therefore, that the War Department ought not now to be told the theory of removing and interning the Japanese. It is a conclusion not without doubt and it might be extended or abused. Like unto the Supreme Court, I think the decision ought to be saved for the specific case in which it is necessary.
* * * * *
You have asked me to consider whether (1) Japanese moved from Hawaii to
the United States could be placed in a delimited zone in which martial law could be declared; (2) martial law could be declared with respect to a group of Japanese.
I. Those Japanese who are aliens can be brought to the continental United States and interned under the provisions of 50 U.S.C. §21 (1940). This statute, however, is probably not applicable to the Japanese who are citizens.
II. Although not free from doubt, an argument can be made for removing Japanese who are American citizens from Hawaii to a restricted zone in the United States. This is total war. It is quite unlike any prior war. Fifth column activities, espionage, and sabotage have been and are being employed on an unprecedented scale. What the Nazis did in Norway, Holland, Belgium, and France -- to mention but a few places -- through citizens of those places as well as through German nationals is now well known. The Japanese have used similar techniques. Axis agents -- American citizens as well as non-citizens -- participated in making the Japanese attack on Pearl Harbor so successful to the Japanese. As a result of the Japanese attack, Hawaii has been put under martial law. Military necessity dictated that move -- a move well justified under the legal authorities. Ex parte Milligan, 71 U.S. (4 Wall.) 2(1866); United States v. Diekelman, 92 U.S. 520, 526 (1875).
Hawaii is still within the Pacific theatre of war and subject to attack again. Continuance of martial law in Hawaii is doubtless justified. If military necessity dictates it -- as it well may -- those Japanese who were interned in Hawaii or those whose presence is dangerous can be removed. To hold otherwise would be deciding upon the impractical. Hawaii is virtually an armed fortress. All of the energies of the armed forces there should doubtless be concentrated on resisting or striking the enemy. If, because of the military needs, the forces cannot be spared to guard or watch the Japanese in Hawaii, they can be removed.
The strongest legal ground upon which to make the removal would be under an order of the military commander in Hawaii to a restricted area -- a military area or military zone -- designated by the Secretary of War under Public Law 77-503, 56 Stat. 173 (1942), codified at 18 U.S.C. §97a (Supp. II 1942). Supplemental Opinions of the Office of Legal Counsel in Volume 186
If this is done, it would not be necessary to declare martial law with respect to these Japanese as a group. A declaration of martial law as to a group is of doubtful legal validity except possibly under unusual circumstances. The circumstances here involved might be such. But I would be inclined not to rely on this method of handling the problem.
III. The existing case law indicates some doubt on the power to remove and intern the Japanese citizens in the United States. But the conditions of modern warfare are different from those of prior wars. Because of this the courts might well follow a different course than that indicated by the earlier decisions. Ex parte Ventura, 44F. Supp. 520 (W.D. Wash.1942).
If the majority opinion in Ex parte Milligan should be followed today, a declaration of martial law outside the zone of active military operations at a place where the courts are functioning would probably not be approved by the Supreme Court. It is believed, however, that, in view of the changed conditions of warfare, the Supreme Court, in a proper case, would follow the views of the dissenting justices in the Milligan case sustaining a declaration of martial law in places outside the zone of active military operations upon a showing of military necessity for such action.
Martial law, however, is ordinarily made applicable to districts or areas and when established applies to all persons within the district or area so long as they remain therein. There appear to be no precedents sustaining a declaration of martial law with respect only to a particular group of persons as suggested in your question numbered 2. From the nature and purpose of martial law, it would seem to be properly applicable to particular areas rather than to particular persons. The establishment of martial law in a delimited zone for the sole purpose of confining therein a particular citizen or group of citizens would also raise questions of policy and public morals. If this can be done with respect to the Japanese here involved, it might be done at any time with respect to any citizen. Thus, it would approach the practices of the German and Italian governments, so bitterly denounced in this country, of establishing citizen concentration camps in which citizens may be confined without due process of law.
There is considerable authority for the position that military necessity for the establishment of martial law is a political question into which the courts will not inquire. There is, however, authority on the other side of this question, and in the comparatively recent case of Sterling v. Constantin, 287 U.S. 378 (1932), the Court inquired into this question and determined that military necessity did not exist.
That case may be distinguishable since it involved a question of conflict between state and federal jurisdiction. There is sufficient language to indicate, however, that the Court would have the right to and would inquire into the necessity for declaring martial law if the occasion arose. A declaration of martial law in a delimited zone for the sole purpose of confining therein objectionable Removal of Japanese Aliens and Citizens From Hawaii to the United States citizens might not be a good case in which to have this question directly passed upon by the Court.
The desired result might be obtained by a suspension of the privilege of the writ of habeas corpus as to the Japanese citizens involved. There is precedent for the suspension of the privilege of the writ as to particular persons. See A Compilation of the Messages and Papers of the Presidents (1789-1908) 19 (James D. Richardson ed., 1909).
This, however, raises the same question of policy and public morals above discussed. If the privilege of the writ can be suspended as to Japanese citizens, it can likewise be suspended as to other citizens at any time. Also, if the suspension should be made by the President, it would reopen the age-old question of whether the President has the authority to suspend or whether that right lies in the Congress alone. I think the President has the power, but whether the controversy over this subject should be again precipitated at this time is a question which should be carefully considered.
IV. 1. If it is at all practical to do so, the safest legal procedure would be to hold the Japanese who are American citizens in Hawaii.
2. The next best legal procedure would be, under the martial law prevailing in Hawaii or under an order pursuant to Public Law 77-503, to intern them in Hawaii and then give them the option to come to the United States if they sign up as members of the work corps of the War Relocation Authority under an agreement to serve for the duration of the war.
3. It would also be proper to evacuate the Japanese citizens from Hawaii under Executive Order 9066 and Public Law 77-503 and then treat them the same as the Japanese evacuated from the West Coast.
4. If it is not necessary for these Japanese to be kept in strict confinement it may be that, in view of the large industrial plants along the East Coast and in many cities extending westward to the Mississippi, military areas might be declared along the entire East Coast and extending inward some distance, thus requiring the Japanese, under Public Law 77-503, to reside in the Middlewest, where they would probably have less opportunity to engage in activities dangerous to the national safety.
5. It is possible that the Japanese citizens legally could be removed from Hawaii and interned in the United States.
OSCAR C. COX
Assistant Solicitor General
World War II and the War on Terrorism are different, and domestic civil-liberties violations as serious as those suffered by Japanese Americans haven't happened on nearly the same scale in the present conflict. It nevertheless behooves us to look back at the overreactions and dubious legal reasoning employed during bygone conflicts, and to presume that, being humans no better or worse than our ancestors, war footing makes us vulnerable to the same mistakes. Indeed, John Yoo only recently wrote his discredited torture memos from the OLC or our era.
Thankfully, Americans needn't adopt the footing of a nation at war to fight against and be reasonably safe from terrorism. As Jim Manzi once put it in a passage I never grow tired of quoting:
We have suffered several thousand casualties from 9/11 through today. Suppose we had a 9/11-level attack with 3,000 casualties per year every year. Each person reading this would face a probability of death from this source of about 0.001% each year. A Republic demands courage -- not foolhardy and unsustainable "principle at all costs," but reasoned courage -- from its citizens .... To demand that the government "keep us safe" by doing things out of our sight that we have refused to do in much more serious situations so that we can avoid such a risk is weak and pathetic. It is the demand of spoiled children, or the cosseted residents of the imperial city. In the actual situation we face, to demand that our government waterboard detainees in dark cells is cowardice.
Of course, war footing or not, there aren't going to be 9/11-level attacks every year. The point is just that, unlike during World War II, there is no need to adopt the mindset or incur the dangers that inevitably attend an enterprise that is properly called "the health of the state." Yes, America ought to stay vigilant against terrorism; but it ought to finally end the War on Terrorism. The Iraq War alone -- its least defensible excess -- took more American lives than did 9/11. War footing has warped our thinking for too long.