Solicitor General Philip Glick:
April 15, 1942 - Memoranda on the Constitutional Power of the War Relocation Authority to Detain Evacuees: OPINION NO. 2: CONFIDENTIAL: April 15, 1942: 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….
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….
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….
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….
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….
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:
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.
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.
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. (2) Evidence that Japanese residents of other countries have proven to be disloyal to their adopted countries. There is considerable evidence of disloyal conduct on the part of Japanese residents in East Asia and Central and South America, such as the acquisition of land in militarily strategic spots, widespread espionage, caching of arms and other war implements, and the maintenance of quasi-military organizations. There is also evidence of active assistance by Japanese residents in the invasion and conquest of territory now overrun by the Japanese, through sabotage, aid to parachute troops, and active collaboration in military operations. (3) Evidence of non-absorption of Japanese into the American culture. It is common knowledge that the United States has discriminated against the Japanese in a number of ways, including the refusal of the right of naturalization and of the right to hold land. Since Japanese cannot be naturalized, citizen Japanese are citizens principally by accident of birth; none has been required to renounce allegiance to Japan. Japanese tend to congregate in colonies in cities or agricultural areas. Many of them maintain Japanese customs, language, and religion; report regularly to Japanese consulates; send their children to Japan for education; or otherwise display an active interest in the mother country. Some have returned to Japan for military service. They are not absorbed into the American culture as are immigrants of Caucasian origin -- even though they might be eager, the color line is quite rigidly maintained in the American social consciousness. (4) Evidence of specific acts of disloyalty among citizen Japanese. Many American citizens of Japanese extraction have been found to be Japanese reserve officers. There have been a number of instances of sabotage, subversive propaganda, and other disloyal activities directly traceable to citizen Japanese. (5) Evidence of suspicious activities engaged in by citizen Japanese. The charting of the West Coast by Japanese fishing sloops and their presence in fleet maneuver areas have been given wide publicity. Japanese with cameras have often been found in vital defense areas. They have obtained the control of land in strategic locations on the West Coast.
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.
The evidence would also probably be sufficient to establish a greater likelihood of disloyalty among citizen Japanese than among citizens German or Italian extraction, since as a general rule German and Italian immigrants are rather quickly absorbed into the American culture. There is no color line. Most of our German and Italian immigrants left their homelands to escape conditions there. Only recently have their governments attempted to use emigration as a political weapon.
In our opinion, however, there need be no showing that citizen Japanese are more likely to be disloyal than German or Italian-American citizens. The Japanese are segregated; measures to counteract possible disloyalty among them can be undertaken quickly and effectively. The Federal Government surely need not wait until it can apply effective restraints against all groups likely to contain a disloyal element before it takes action against one of those groups against which an effective restraint is easy to apply.
b. It is possible, of course, to distinguish between citizen Japanese against whom evidence of pro-Japanese interest or subversive conduct exists and all other citizen Japanese. Such a classification would be dangerous if there are reasonable grounds for believing that a substantial number of those against whom no evidence exists may later prove to be disloyal. Many citizen Japanese have been educated in Japan and thereby may have been indoctrinated with Japanese doctrines and given special instructions in the event of war between Japan and the United States. These individuals may have an unmarred record, and it is impossible to tell who they are and when the disloyalty will manifest itself. Many citizen Japanese are believers in Shintoism, which deifies the Emperor, and may regard the orders of the Emperor as superior to any obligation of loyalty to the United States. In addition, ties of race may bring about the defection of considerable numbers of Japanese if Japanese victories continue or if a good opportunity to assist the motherland should present itself. The facts that can be brought out under the preceding section of this memorandum will very likely show a general pattern of Japanese activity in foreign countries inconsistent with assuming the loyalty of Japanese residents of unmarred records. On the basis of these considerations, it would certainly be reasonable to apply restrictions to all Japanese internees rather than merely the suspects.
The difficulty of surveillance of citizen Japanese actually under suspicion, where all Japanese are permitted freedom of movement, may be another reason for restricting the movement of Japanese as such. If as a matter of fact it is difficult for most Americans immediately to recognize the differences in features among persons of Japanese extraction to the same extent that they can do this with respect to others and for that reason surveillance of suspects intermingled with other Japanese is difficult, there would be a lessened danger of sabotage or fifth column work if general restrictions upon all Japanese are imposed.
c. Evidence of the likelihood of disloyalty and of the reasonableness of classifying all citizen Japanese together for the purpose of wartime restrictions would also support the conclusion that there is serious present danger from the free and uninhibited movement of the Japanese. The present geographical concentration of the Japanese intensifies the danger.
To what extent may restrictions be imposed for the purpose of preventing sabotage and fifth column work? It would certainly be reasonable to restrain the movements of the internees so as to prevent their migration to coastal areas, munitions plants, arsenals, and industrial centers engaged in production of military and naval supplies. This in itself would considerably restrict their possible movement. But sabotage may take the form of cutting railroad lines, destroying bridges, blowing up dams and power sites, and other activities that will disrupt the war effort no matter where in the country they are performed. Fifth column activity may consist of organizing small units throughout the country for the purpose of engaging in espionage, or disruptive activities in time of invasion. Because of these factors, it is likely that, purely on the basis of existing evidence, the absolute detention of the evacuees for the duration of the war would be sustained.
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:
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.
Litigation will first arise on or near the West Coast, where the public is keenly conscious of the danger of attack and of the Japanese problem. A Federal district or circuit court in that region cannot but be informed as to the problems raised by the presence of the Japanese in the prosecution of our war effort.
Since the action will probably arise during wartime, the Government will have an additional advantage. No court will refuse to give great weight to a determination by another branch of the government charged with the successful prosecution of the war that a temporary suspension of civil rights is necessary for the national safety, even though the court might consider the matter to be doubtful. And it is highly unlikely that a court will, in wartime, hand down any decision removing all legal sanction for restraining interned Japanese when the military arm of the Government deems the restraint necessary and may well enforce it regardless of judicial decision. 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)