August 01, 2012

Opening Statement: After 9/11 Preserving Liberty Through a Vigilant Judiciary

James Madison warned in the starkest terms about the dangers of executive power in times of war; his words have proved prescient.

Ron Marmer

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As our nation struggled to craft the Constitution, the challenge was to empower an effective central government while recognizing that government itself could be the most dangerous threat to freedom. On June 29, 1787, at the Constitutional Convention, James Madison warned in the starkest terms about the dangers of executive power in times of war: The “means of defense against foreign danger, have been always the instruments of tyranny at home.” Madison knew that in “time of actual war, great discretionary powers are constantly given to the Executive . . . .” And he admonished that the “Constant apprehension of war, has the same tendency . . . .” Those were lessons, Madison told the Convention, from the history of Rome and Europe.

In the Federalist Papers, Alexander Hamilton assured critics that a system of checks and balances provided a structural safeguard “by so contriving the interior structure of the government as that its several constituent parts . . . be the means of keeping each other in their proper places.” Observing that the “judiciary is beyond comparison the weakest of the three departments of power,” Hamilton was explicit that federal judges must have life tenure—“to hold their offices during good behavior”—to allow them to perform their proper role.

On March 4, 1789, the Constitution took effect, and the nation worked to find the proper roles for each branch of government. In Marbury v. Madison, 5 U.S. 137 (1803), Chief Justice John Marshall confirmed the Supreme Court’s authority to declare legislation unconstitutional. Less than four years later, another critical test of checks and balances arose when President Thomas Jefferson ordered the arrest of Aaron Burr. By the time of his arrest, Burr already had killed Hamilton in the infamous duel. But Jefferson had a more serious concern: Jefferson concluded that Burr had committed treason.

With Chief Justice Marshall presiding at the trial, Burr’s counsel moved to arrest the evidence, arguing that the government had failed to satisfy the Constitution’s strict requirement that two witnesses testify to the same overt act of treason. One of the prosecutors, George Hay, intimated that if Marshall ruled against the government, he might be impeached. Marshall granted Burr’s motion. In Henry Adams’s fascinating History of the United States, he gives this account of the proceedings: “As though turning from the crowd in the court-room to look for a moment directly into the eyes of the president, the threatened chief-justice uttered a few words that were at once answer and defiance. . . .” Marshall said, “That this Court does not usurp power is most true; that this Court does not shrink from its duty is not less true.” Burr was acquitted.

During World War II, the nation faced a shocking exercise of executive authority. Two months after the Japanese attacked Pearl Harbor, President Franklin Delano Roosevelt issued Executive Order 9066, authorizing the secretary of war “to prescribe military areas . . . from which any or all persons may be excluded . . . .” Within weeks, General John DeWitt began to issue public proclamations establishing military areas, imposing curfews, relocating American citizens of Japanese ancestry, and creating “relocation centers”—the internment camps.

Gordon Hirabayashi, an American citizen of Japanese descent, was a senior majoring in mathematics at the University of Washington. He refused to comply with a curfew established by Proclamation No. 3 or to report to a designated Civil Control Station in Seattle as required by Civilian Exclusion Order No. 57. When Hirabayashi’s case reached the Supreme Court, the solicitor general’s brief openly appealed to racial and religious prejudice. Arguing that American citizens of Japanese ancestry might assist the Japanese—a “Fifth Column”—during a West Coast invasion, the solicitor general cautioned that “an unknown number of the Japanese may lack to some extent a feeling of loyalty toward the United States” and may have a “heightened sense of racial solidarity, and a compensatory feeling of racial pride or pride in Japan’s achievements.” The solicitor general then expressed concern that “the basic doctrine of Shinto is the apotheosis of, and reverence for, the Japanese Imperial Family. . . .” He added that some Buddhist priests “attempted to indoctrinate their congregations with Japanese nationalism.” The Supreme Court affirmed Hirabayashi’s convictions, 320 U.S. 81 (1943).

Fred Korematsu was born in California, was a registered voter in Alameda County, had registered for the draft, and was willing to serve in the U.S. military. He did not want to be evacuated and refused to comply with Civilian Exclusion Order No. 34. In the Supreme Court, the solicitor general’s brief relied extensively on General DeWitt’s Final Report for the “facts relating to the justification for the evacuation . . . .” Although not disclosed to the Court, but known to the solicitor general, the FBI had conducted its own investigation concerning the Final Report’s key allegations of “a possible connection between the sinking of United States ships by Japanese submarines and alleged Japanese espionage activity on the West Coast.” J. Edgar Hoover advised the attorney general that the FBI could find “no information” to confirm the reports of “espionage activity on the West Coast. . . .” The Supreme Court affirmed Korematsu’s conviction, 323 U.S. 214 (1944).

Through the work of many, including Professor Peter Irons, the truth about the solicitor general’s shameful conduct came to light. In 1983, Korematsu filed a petition for a writ of coram nobis to vacate his convictions because of governmental misconduct. In her decision granting the writ, Judge Marilyn Hall Patel reviewed—indeed, she attached as appendices to her opinion—memoranda from Department of Justice officials pointing out “to their superiors and others the ‘willful historical inaccuracies and intentional falsehoods’ contained in the DeWitt Report.” 584 F. Supp. 1406, 1418 (N.D. Cal. 1984). One of the memoranda urged the solicitor general to correct “these lies.” That same memorandum accused the War Department of providing false information to the states of California, Oregon, and Washington to include in their brief amici curiae. The other memorandum also was blunt: “The statements made by General DeWitt . . . are contrary to detailed information in our possession and we ought to say so.” Just last year, Acting Solicitor General Neal Katyal acknowledged that responsible voices within the Department of Justice at the time had warned that failing to disclose the information to the Supreme Court “might approximate the suppression of evidence.”

Yes, that was during World War II. But could it happen again?

Shortly after the 9/11 attacks, Justice David Souter spoke publicly about the Japanese internment cases. Although Justice Souter’s language was measured, his message was clear. He told a large group, which included dozens of federal judges, that when the government comes to court insisting that something must be done in the name of national defense, the judges had to ask tough questions.

The 9/11 attacks and the war on terror have created an understandable climate of fear and a predictable call for broad executive power. Some have insisted that the president has plenary authority to conduct the war on terror, accountable only through the electorate. The president, it has been widely reported, personally decides which American citizens can be classified as military combatants that the military can kill. On that basis, the president ordered the killing of Anwar al-Awlaki, an American citizen believed to have been an officer in al-Qaeda who participated in plotting terrorist attacks. On September 30, 2011, the military launched a drone attack in Yemen and killed al-Awlaki. Responding to criticisms that the president had overstepped his constitutional authority by ordering the killing of an American citizen, the attorney general urged that the right to “due process” does not imply a right to “judicial process.” The attorney general’s assertion, if credited, knows no bounds. And as history teaches, the executive branch, left unchecked, knows no limits.

We now know the truth about the stain of the Japanese internment cases. We also know about the Pentagon Papers, Watergate, the Enemies List, and the FBI’s role in harassing dissenters who opposed the war in Vietnam. Other abuses remain shrouded in secrecy. But we certainly know enough to realize that Madison was right: Without constant vigilance, the “apprehension of war” can be used to expand executive power, and threats of “foreign danger” can become the “instruments of tyranny at home.” As heirs to the legacy of Chief Justice Marshall, a vigilant and independent judiciary, especially in times of war, is an essential constitutional safeguard of our most precious liberties.


Ron Marmer

Chair of the Section of Litigation