Crisis and Command: A History of Executive Power from George Washington to George W. Bush (45 page)

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."
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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 individuals 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.
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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.

Roosevelt had long been concerned with the potential threat of a "fifth column" inside the United States. The spectacular 1916 sabotage of an American munitions plant remained vivid in his memory. As early as 1936, Roosevelt authorized the FBI to investigate "subversive activities in this country, including communism and fascism."
172
When World War II broke out, Roosevelt ordered the Bureau to "take charge of investigative work in matters relating to espionage, sabotage, and violations of neutrality regulations," and commanded state and local law enforcement officers to "promptly turn over" to the FBI any information "relating to espionage, counterespionage, sabotage, subversive activities and violations of the neutrality laws." FDR did not define what "subversive activities" meant.

France's collapse in May 1940 had a profound effect. At the time, Germany's smashing victory seemed inexplicable as a feat of arms alone, so the idea grew that collaborators and spies were also responsible. Roosevelt increasingly spoke of his concern that the United States, too, might suffer from Axis sympathizers or covert agents intent on undermining its war preparations. Even before Hoover came to make his request, FDR had already encouraged amateurish surveillance efforts. His friend, publisher and real estate developer Vincent Astor, had set up a private group he had called "the Room," which included leading figures in New York City. As a director of the Western Union Telegraph Company, Astor ordered the covert interception of telegrams. He and his friends also arranged for the monitoring of radio transmissions in New York. Using its connections, the group gathered the private banking records of companies connected to foreign nations to determine whether they were supporting espionage within the United States. While there is no direct record of a presidential order authorizing this surveillance, historical evidence suggests that the group was acting in response to a request by Roosevelt.
173

Given his suspicions, Roosevelt quickly agreed with Morgenthau and Hoover that the wiretapping of suspected Axis agents or collaborators was necessary to protect national security. The next day, he issued a memorandum to Jackson to allow the FBI to wiretap individuals who posed a potential threat to the national security.
174
And after Pearl Harbor, FDR authorized the interception of
all
international communications. Even though some Justices had criticized wiretapping, the Court had held in 1928, in
Olmstead v. United States
, that the Fourth Amendment did not require a warrant to intercept electronic communications.
175
It would not be until 1967, in
Katz v. United States
, that the Supreme Court would hold that electronic communications were entitled to Fourth Amendment privacy protections.
176

Congress, however, appeared to have prohibited the interception of electronic communications in the Federal Communications Act of 1934. It declared that "no person" who receives or transmits "any interstate or foreign communication by wire or radio" can "divulge or publish" its contents except through "authorized channels of transmission" or to the recipient. In
United States v. Nardone
, decided in 1937, the Supreme Court interpreted this language to prohibit wiretapping by the government as well as by private individuals.
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In a second
Nardone
case, the Court made clear that the government could not introduce in court any evidence gathered from wiretapping.
178

FDR recognized that his wiretapping order of May 1940 violated the text of the statute, or at least the Supreme Court's reading of it, but the President claimed that the Supreme Court could not have intended "any dictum in the particular case which it decided to apply to grave matters involving the defense of the nation."
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Administration supporters in Congress introduced legislation to legalize wiretapping, but the House rejected the bill 156-147. FDR continued the interception program throughout the war despite the Federal Communications Act and
Nardone
. FDR's pre-war interception order applied to anyone "suspected of subversive activities" against the U.S. government, which included individuals who might be sympathetic to, or even working for, Germany and Japan.
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At that time, however, the United States was not yet at war. While FDR wanted the FBI to limit the interceptions to the calls of aliens, his order did not exclude citizens. Most importantly, it was not limited only to international calls or telegrams, but included communications that took place wholly within the United States.

CONCLUSIONS