Wednesday, August 19, 2015

Advice from Justice Jackson for our "War on Terror"

Exclusion Area for Japanese Americans during WWII
and location of Detention Camps
In times of conflict our military and intelligence authorities sometimes pursue extra-judicial measures for our protection.  For the past 14 years, we have been conducting a "war on terror." Much of this war has been conducted in an extra-judicial manner: from extra-judicial renderings, to long term detention without charge at Guantanamo, to warrantless mass surveillance, to drone killings. 

What is the proper role of courts in such times?

Justice Robert H. Jackson in his dissent in Korematsu v. United States provides some guidance.  He cautioned that, even if the courts are not able to act as an effective overseer of our military and intelligence forces in times of war, it is important that courts stay true to their role as guardians of the constitution. Above all else, courts must not allow emergencies and war to degrade our constitutional values and protections. In other words, courts must not throw citizens to the wolves of the military, CIA, NSA, FBI, in the name of national security. We would do well to heed Justice Jackson's advice today.


Korematsu is the infamous 6-3 decision of the United States Supreme court, issued on December 18,  1944. As the war was nearing its end, the court retroactively approved a panicked military decision made at the outset of the war.  By approving the hasty (and racist) military action at the outset of the war as "constitutional," the court adapted the constitution to the emergency. The court allowed the emergency to erode the constitution.  It was a mistake.

On December 7, 1941, Japanese planes attacked Pearl Harbor and largely destroyed the U.S. Pacific fleet; 2,403 seamen and airmen lost their lives. The next day the United States declared war against Japan. Over the subsequent weeks, in a fit of hysterics and prejudice, Japanese Americans were fired from government jobs, and had their cameras and short-wave radios confiscated.  Newspapers fanned the flames of prejudice.  For a survey of NW papers See Here . 

On February 19, 1942 two and a half months after the attack on Pearl Harbor, President Roosevelt signed Executive Order 9066 authorizing military commanders to exclude anyone from designated "military areas," subject to whatever restrictions the commander may impose in his discretion.  A companion congressional statute made it a misdemeanor to disobey any order of the military commander regarding a restricted area.

Over the next few months of 1942, military commanders "deemed it necessary" to relocate approximately 117,000 people of Japanese ancestry  from regions of the West Coast to internment camps.  These citizens (mostly) were imprisoned in detention camps throughout the West, under harsh conditions without any hearing or individualized suspicion whatsoever, purely based on ancestry, race, and prejudice. The courts fell short in safeguarding the constitutional rights of these individuals.

Camp Harmony, Puyallup, WA
Camp Granada, CO
Toyasaburo Korematsu, a resident of San Leandro, CA, refused an order to leave his home and he subsequently challenged his resulting arrest and conviction in court. The case reached the United States Supreme Court.

In a narrow holding, the Supreme Court approved as "constitutional" the exclusion of Japanese American citizens from designated areas along the West Coast.  But in actuality, the court--to its everlasting shame--closed its eyes to the constitution and the imprisonment of 117,000 citizens in concentration camps based solely on ancestry.[1] 

Justice Black began his majority decision with an admission: 
It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.
He next noted that the court had previously upheld a curfew order, based on the same set of military orders in Hirabayashi v. U.S. (320 U.S. 81, June 1943).  Notably, the court had found (1) that the delegation of the executive order to the military commander to take such measures as he "deemed necessary or desirable" was not an unconstitutional delegation of authority in war time; and (2) that to limit the curfew to residents of Japanese ancestry did not violate the equal protection clause.
To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.
Justice Black went on to summarily uphold the relocation order in Korematsu, as follows:
In the light of the principles we announced in the Hirabayashi case, we 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. True, exclusion from the area in which one's home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. 
Without any hearing or taking of evidence on the question, the court deferred to the military authorities that there might be some in the target population who might pose a threat, and upheld the action on the ground that it would be impractical to quickly and accurately identify those few individuals who might in fact be a threat. The court acknowledged that this was a burden, but observed that in times of war, everyone bears a burden, and the burden falls on citizens unequally. Without expressly stating it, the court implied that being interned based on generalized prejudice is unfortunate, but it is not worse than the lot of infantry grunts stuck on a landing craft at Normandy.

The court found that the exclusion order that forced Korematsu to leave his home was not based on prejudice, but rather on the fact that we were at war with Japan.  But it must be noted, of course, that there was a history of prejudice against Asians in the West, and there were no similar orders covering German Americans or Italian Americans, which leaves some question about the "no prejudice" claim.

Today, it appears, the NSA is collecting the personal phone and computer data of vast numbers, without warrant or cause, because there might be a few who would do us harm. Do the standards of the constitution for due process and equal protection alter in time of war so that this is O.K.? Should the constitutional standard be less stringent in time of war, as the majority suggested in Korematsu? Might it be o.k. under the constitution today to imprison hundreds of thousands of Muslims in detention camps because there is a "war on terror" and there are some Muslims who would do us harm? 

Most emphatically not, said justice Jackson. 

Jackson's Dissent in Korematsu

Justice Jackson starts with the undeniable: 
A citizen's presence in the locality... was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four-the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole- only Korematsu's presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock. 
Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one's antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that 'no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.' Article 3, 3, cl. 2. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace-time legislation should enact such a criminal law, I should suppose this Court would refuse to enforce it.
The "law" of which Korematsu was convicted, notes Jackson, was not an act of Congress, nor does it stem from the executive order.  The exclusion order comes from the military commander. Such military orders, driven by military exigencies, by their very nature do not always conform to conventional tests of constitutionality.
It would be 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. When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal. The armed services must protect a society, not merely its Constitution. The very essence of the military job is to marshal physical force, to remove every obstacle to its effectiveness, to give it every strategic advantage. Defense measures will not, and often should not, be held within the limits that bind civil authority in peace. No court can require such a commander in such circumstances to act as a reasonable man; he may be unreasonably cautious and exacting. Perhaps he should be. But a commander in temporarily focusing the life of a community on defense is carrying out a military program; he is not making law in the sense the courts know the term. He issues orders, and they may have a certain authority as military commands, although they may be very bad as constitutional law.
But if it is true that the military has to do what it has to do in times of war in order to protect the country, says Jackson, we nevertheless do not bend the constitution to adapt to this military necessity. The courts should not sanction the military actions as "constitutional." Although the courts should stay out of the military's way as much as possible, they should vindicate the constitutional rights of individuals who come before the court.
But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. This is what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional and have done with it. 
Courts are not suited to review military orders in times of military emergency, says Jackson. Such orders, by their nature are rough and secretive. They are not compatible with judicial review:
The limitation under which courts always will labor in examining the necessity for a military order are illustrated by this case. How does the Court know that these orders have a reasonable basis in necessity? No evidence whatever on that subject has been taken by this or any other court. There is sharp controversy as to the credibility of the DeWitt report. So the Court, having no real evidence before it, has no choice but to accept General DeWitt's own unsworn, self-serving statement, untested by any cross-examination, that what he did was reasonable. And thus it will always be when courts try to look into the reasonableness of a military order.
Think about these observations by justice Jackson here in light of the "enemy combatants" our government is holding in Guantanamo:
In the very nature of things military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.
Military decisions are secretive, and they do not rest on the type of evidence courts require; they are made on assumptions that cannot be proven. If the courts are to have any oversight role, they would in practice be forced to accept the word of the military authority whose decision is being reviewed. This limitation, that courts can never have any real alternative to accepting the mere declaration of the authority that issued the order, it seems to me, applies equally to the secretive U.S. Foreign Intelligence Surveillance (FISA) court that Congress established in order to oversee our intelligence agencies and to issue secretive warrants. Such courts are part of the military or intelligence apparatus,  and useful for that purpose, but they are not an independent check on constitutional abuses.

The loss of liberty associated with such military orders and actions during times of national emergency is of course a matter of grave concern to those affected, says Justice Jackson. However, for courts to recognize such actions as constitutional--as the majority did in Korematsu--is to add insult to injury. Blessing such actions as "constitutional" represents a much more serious blow to liberty.
Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. 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. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as 'the tendency of a principle to expand itself to the limit of its logic.' A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court's opinion in this case.
Justice Jackson concludes, therefore, that a civil court must not enforce any order that violates constitutional limitations--even if they are a reasonable exercise of military authority.
I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy.  Of course the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by military superiors. If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.
When he says "the chief restraint upon those who command the physical forces of the country ... must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history," Justice Jackson was prescient: he was appointed one of the chief prosecutors of the Nazi war crimes tribunal at Nuremberg.

We must note that by the time the Supreme Court decided Korematsu, the perceived threat of attack against the United States West Coast from Japan had passed.  The Japanese were fully on the defensive by that time. So what guidance does Justice Jackson give to future courts?
My duties as a justice as I see them do not require me to make a military judgment as to whether General DeWitt's evacuation and detention program was a reasonable military necessity. I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task. But I do not think they may be asked to execute a military expedient that has no place in law under the Constitution I would reverse the judgment and discharge the prisoner.
Jackson was of the view that the trial courts, when confronted by Korematsu's challenge in 1942, should have set him free.  Court's are bound to vindicate the constitution.  On the other hand, says Jackson, the court's should abstain from enforcing an injunction against the military action in a time of emergency ("[not] interfere with the Army in carrying out its task").

Is Justice Jackson's advice practical?  Setting Korematsu free but "otherwise not interfering with the Army's program" would very quickly begin to interfere with the army's program. This is easier said, therefore, in December 1944 than in 1942 when the Japanese empire was at its peak and Pearl Harbor was just attacked.  If the court had issued a ruling in 1942 that the relocation order was unconstitutional, it would not take long to man up an army of lawyers for each of the 117,000 Japanese detainees in the internment camps, or to launch a class action on their behalf.  The result would be individualized hearings at a judicial pace--even as the army continued to deal with the emergency. It is unlikely that 117,000 ethnic Japanese citizens and residents would have been detained for the duration of the war.

What Lessons for the War on Terror

The lesson to keep in mind from Justice Jackson's dissent is that a "war on terror" may, by its very nature, entail extra-judicial and extra-constitutional actions by our military, police, and intelligence services. The courts, however, should NEVER be party to bending the constitution to accommodate or justify such actions.  

What might this mean when individuals come before the court raising constitutional claims relating to "enhanced interrogations?" Extra-judicial renderings? Extra-judicial surveillance and data gathering? Extra-judicial drone strikes?  The courts should vindicate those rights to the extent possible... even as we recognize that our civil courts may not be the ultimate arbiter of the appropriateness of extra-judicial actions taken by our military and intelligence services in order to protect the country in an emergency or war. 


[1] To name the guilty and honor the virtuous: Justice Hugo Black wrote the opinion for the court, joined by Chief Justice Harlan Fiske Stone, and justices William O'Douglas, Stanley Reed, Felix Frankfurter, and Wiley Rutlege; justices Owen Rogers, Frank Murphy, and Robert H. Jackson--to their everlasting credit--all wrote in dissent]  In the companion case of Ex Parte Mitsuye Endo, 323 U.S. 283 (S. Ct. 1944) the court ordered the release of Mitsuye Endo from detention on non-constitutional grounds; the government in that case had admitted that Mitsuye Endo was a loyal citizen of the U.S. and, although it was lawful for the military to exclude her from the restricted area (the entire West Coast), Executive Order 9066 and the related Congressional statute--did not authorize military detention of loyal citizens outside of the exclusion zone.

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