now passed, and the operational period was approaching when great masses of troops would be continually shifted about on the East Coast and finally onvoyed to the eastern theatre of operations; that the individual exclusion program as here put into effect was in accordance with the fundamental principles of counterintelligence; that written notice had been given to the plaintiff to appear before a Military Hearing Board, informing him that an investigation was then in progress to determine whether or not he should be excluded from the Eastern Military Area, pursuant to Executive Order No. 9066; that he appeared before the Board and gave testimony, and although given an opportunity he produced no witnesses on his behalf; that while not presented with any formal specifications of charges, he understood the purposes for which the Hearing Board was sitting and what its nature was. The testimony also detailed the exclusion process through the various reviewing officers and boards until it finally reached the Commanding General of the Third Service Command, who recommended exclusion in the case which was forwarded with supporting recommendations and documents to the Eastern Defense Command.
The question posed for solution here is the same question as was presented to this Court in Olga Schueller v. H. A. Drum, 51 F.Supp. 383, and involves the construction of Public Law 503 of the 77th Congress, 2d Sess., which provides as follows:
"Whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive Order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense." March 21, 1942, ch. 191, 56 Stat. 173, 18 U.S.C.A. § 97a.
and Executive Order No. 9066, 7 Federal Register 1407, promulgated by the President on February 19, 1942, provides, insofar as here relevant:
"Whereas the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (U.S.C., Title 50, Sec. 104):
"Now, therefore, by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. The Secretary of War is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of War, or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order. The designation of military areas in any region or locality shall supersede designations of prohibited and restricted areas by the Attorney General under the Proclamations of December 7 and 8, 1941, and shall supersede the responsibility and authority of the Attorney General under the Said Proclamations in respect of such prohibited and restricted areas.
"I hereby further authorize and direct the Secretary of War and the said Military Commanders to take such other steps as he or the appropriate Military Commander may deem advisable to enforce compliance with the restrictions applicable to each Military Area hereinabove authorized to be designated, including the use of Federal troops and other Federal Agencies, with authority to accept assistance of state and local agencies."
The same question has been raised in Massachusetts and in California, and has been passed upon by the Circuit Court of Appeals for the Ninth Circuit, Fred Toyosaburo Korematsu v. United States of America, 9 Cir., 1943, 140 F.2d 289, Id., 319 U.S. 432, 63 S. Ct. 1124, 87 L. Ed. 1497. This court has attempted to approach the question here raised wholly disassociated from any previous convictions formed in the above mentioned Schueller case, fully aware of the importance of the principle involved. However, while the testimony here offered is stronger in character and greater in amount, and although the Government's contention has been cogently argued and ably presented, I am of the opinion that the prayer of the bill should be granted.
While each case must be bottomed on its own peculiar facts, it seems to me the same question recurs continually through all of the cases presently decided, to wit: In what instances and under what circumstances, if any, can Congress and the Executive in the prosecution of their power of waging war, infringe the constitutional guarantees of individuals, in other words, what are the limitations, if any, of their power to wage war? It must be now taken for granted that the Constitution commits to both the Executive and to Congress the exercise of the war power in all its amplitude and of necessity gies them a broad scope for the exercise of their judgment and discretion in determining the nature and extent of the threatened injury or danger. Ex parte Quirin, 317 U.S. 1, 28, 29, 63 S. Ct. 2, 87 L. Ed. 3; Martin v. Mott, 12 Wheat. 19, 29, 6 L. Ed. 537; Hirabayashi v. United States, 320 U.S. 81, 93, 63 S. Ct. 1375, 1382, 87 L. Ed. 1774. While the court says in the Hirabayashi case, supra: "Where, as they did here, the conditions call for the esercise of judgment and discretion and for the choice of means by those branches of the Government on which the Constitution has placed the responsibility of war-making, it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs."
I feel, nevertheless, that this portion of the opinion should be read in the light of the existing inquiry which was under scrutiny in the case. On page 101 of 320 U.S., on page 1386 of 63 S. Ct., 87 L. Ed. 1774, thereof, the court stated as follows:
"Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew. We cannot close our eyes to the fact, demonstrated by experience, that in time of war residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry. Nor can we deny that Congress, and the military authorities acting with its authorization, have constitutional power to appraise the danger in the light of facts of public notoriety. We need not now attempt to define the ultimate boundaries of the war power. We decide only the issue as we have defined it -- we decide only that the curfew order as applied, and at the time it was applied, was within the boundaries of the war power. In this case it is enough that circumstances within the knowledge of those charged with the responsibility for maintaining the national defense afforded a rational basis for the decision which they made. Whether we would have made it is irrelevant." (Italics our own.)
Accordingly it can readily be seen that the issue was not alone factually different, in that the court in that case had under construction the validity of a curfew order and here an evacuation order, but further that the court was in no wise attempting to define the ultimate limits of the war power, but merely the narrow question of the validity of a curfew order in its attendant setting.
In other words, I feel that what the allowable limits of military discretion are, is still a judicial question, as stated by Chief Justice Hughes in Sterling v. Constantin, 287 U.S. 378, 401, 53 S. Ct. 190, 77 L. Ed. 375, and accordingly, I feel it is for the judicial power to say whether or not the decisions made by the Executive through the Military Commander backed by legislative authority had a rational basis under given circumstances. Here, I feel that the decree as promulgated, at the time it was promulgated, did not have such a rational basis in that I do not feel that any such situation obtained on the Eastern Seacoast for the exclusion order, at the time it was made, as existed on the Western Coast, at the time the curfew order was installed. In that instance an entire race was suspect, the Japanese, a race which, though some of its members had become American citizens, had never been absorbed into the customs and traditions of the country, and who were possessed of a dual citizenship at the same time giving an allegiance to Japan as well as to the United States.In that instance mass action was contemplated, here, an individual exclusion program is carried out.
In the present instance, it is admitted that the danger of invasion has decreased, although it is asserted that the opportunity for sabotage and espionage have increased by reason of the greater production in war materials and the greater number of troops being shifted through the Eastern Seaboard and eventually convoyed to the Eastern theatre of operations. However, it seems to me that the reduction in the coastal evacuation area, while in no sense controlling either way, in no wise helps the government's case, for while there was an intensity of production and great movements of masses of troops, the inescapable fact remains that the government felt that a smaller land area was permissible from which evacuations were to be made.
True, it is in Fred Toyosaburo Korematsu v. United States, supra, the only time the matter has been reviewed by a Circuit Court, the court therein stated [ 140 F.2d 290]:
"However, the Supreme Court held that under the Constitution the government of the United States, in prosecuting a war, has power to do all that is necessary to the successful prosecution of a war although the exercise of those powers temporarily infringe some of the inherent rights and liberties of individual citizens which are recognized and guaranteed by the Constitution."
It is to be remembered that this case involved the exclusion of a native born citizen of the United States of Japanese ancestry, as well as all the attendant circumstances which were then existant on the Pacific Coast by reason of the racial problem there involved. To hold that this broad principle so enunciated can be applied generally and in particular to the situation here obtaining, I cannot agree. I hold that exclusion orders from military areas are within the war powers of Congress and the Executive acting together, as proper means of carrying out an executive order for the protection of military areas against sabotage and espionage, I do not feel that the circumstances obtaining here were appropriate for such order as I believe that even in the prosecution of a war, the infringement of inherent rights and liberties of the individual guaranteed by the constitution should only be permitted when a situation in an area exists which is fraught with some degree of immediate danger to the welfare of the country, as stated by this Court in Olga Schueller v. H. A. Drum, supra [51 F.Supp. 387]:
"The war power, distributed between Congress and the President, comprehends all that is requisite to wage war successfully. The proper adjustment between judicial power and administrative action, in time of war, is extremely delicate in nature and cannot admit of precise definition. Every circumstance and condition must weigh in the balance, and the true criterion will always give effect to the type and nature as well as the nearness or proximity of the danger to government, as against the particular constitutional guaranty trespassed, whether it be of a high or low order."
Here, every normal phase of civilian life was being engaged in, and in addition, the record is barren of any actual instance of espionage or sabotage in the particular area in which the plaintiff is situate. Accordingly as I have indicated, an entirely different situation obtains here, than that which was present in the Hirabayashi case, supra. Here, at most, is shown an opportunity for the exercise of espionage and sabotage, or more particularly, that the reduced military area affords abundant opportunity for the engagement in either of these practices by a plaintiff, such as we have here, who seems more imbued with Nazi principles than with American ideals, and who, it appears, gives but a grudging allegiance to a land and system under which he has lived and prospered. However, this is not enough. There must be existing in the area some immediacy of danger to the welfare of the country. An order such as here under scrutiny, must be laid in a society, engaged in a war, whose setting and background is, either already in a disturbed status -- whose home-front is threatened -- or one in which there is every immediate likelihood of such a happening, as opposed to a society engaged in war, having, what one might term a static equilibrium such as exists in the instant case, with a normal home-front, where discipline under the civil law is ample to cope with every emergency arising under the war effort.
The parties will submit a decree in accordance with this opinion.
© 1992-2004 VersusLaw Inc.