Rights Under Fire

All the Laws but One: Civil Liberties in Wartime

By William H. Rehnquist (Knopf, 254 pp., $26)

The United States declared war against Japan on December 8, 1941. On March 24, 1942, the military commander of the western defense, acting under a grant of authority from President Roosevelt and the Congress, imposed a curfew on all persons of Japanese ancestry living on the West Coast. On May 3, 1942 the same commander issued one of a series of "exclusion orders," requiring all persons of Japanese descent, whether American citizens or not, to leave their homes on the West Coast. Such persons were ordered to report to "Assembly Centers." From these centers, some people were released on the condition that they remain outside the prohibited zone, but most were shipped to "Relocation Centers," which they could not leave without permission of the military commander.

On May 30, 1942, Fred Toyosaburo Korematsu, an American citizen of Japanese descent and unquestioned loyalty to the United States, refused to leave his home, invoking what were, in his view, the protections of the United States Constitution. He was tried and convicted of committing a federal crime. On December 18, 1944, the Supreme Court held that Korematsu's constitutional rights had not been violated, that military necessity justified the relocation of Japanese-Americans.

In times of war, nations generally do not much care about individual rights. And violations of civil liberties in wartime are hardly foreign to the United States. An exasperated Abraham Lincoln, responding to a civil liberties objection to his efforts to protect the nation, wondered whether it would be necessary to allow "all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated." Many public officials, not excluding Franklin Delano Roosevelt during World War II, have been similarly exasperated. Thus Francis Biddle, Attorney General in the early 1940s, wrote that he did not "think that the Constitutional difficulty plagued" Roosevelt. Indeed, he concluded, the "Constitution has not greatly bothered any wartime President."

William Rehnquist's book is a historical survey of violations of civil liberties during wartime. The Chief Justice is not someone with a lot of spare time on his hands, but he has produced a dispassionate and lucid book, with some striking themes. At times it seems as if Rehnquist, obviously fascinated by history, wants to explore the facts for their own sake, and his own commentary seems quite spare. Yet he is not a passive reporter, and he has a number of interesting things to say--about the inevitability of judicial caution when stakes are high and political pressures are intense, about the unhelpfulness of civil libertarian platitudes, and (perhaps most important) about some seemingly small steps that courts might take to ensure against the most reckless or ill-considered judgments, from either the executive or the courts.

Rehnquist's principal themes are that the executive should generally be required to act not on its own, but with congressional approval; and that judicial intrusions should be surgical, narrow, and precise. These notions emerge from his sequential discussion of the great conflicts between individual liberty and perceived wartime needs: the Civil War period; World War I; the notorious Japanese internments during World War II; and the almost never-discussed use of martial law in Hawaii in World War II.

Well over half of Rehnquist's book is devoted to the Civil War period, which emerges as by far most catastrophic period for civil liberties in the history of American law. A key moment came in April 1861, after Northern troops, boarding the train from Baltimore to Washington, were mobbed by Confederate sympathizers. Many soldiers and civilians were killed. During the following week, Washington seemed cut off from the rest of the North; troops failed to arrive, ships and messengers did not come, railroads were broken. At this stage Lincoln, fearing the worst, took the unprecedented step of suspending the great writ of habeas corpus along rail routes from the north. That writ, a central guarantor of liberty under Anglo-American law, grants a distinctive right to any person arrested or detained by the government. In a nutshell, the right allows any prisoner to go to court to obtain an explanation for the intrusion on personal liberty, and the court is entitled to release the prisoner if the explanation is not good enough.

The writ having been suspended, Northern troops arrested one John Merryman for participating in the destruction of railroad bridges after the Baltimore riot. Merryman contended that Lincoln had acted unlawfully and that he had a right to contest the arrest in ordinary civil courts. Chief Justice Roger Taney--the author, by the way, of the infamous Dred Scott decision, holding that slavery is constitutionally sacrosanct--held that Lincoln had acted unlawfully. Taney concluded that under the Constitution the President could not suspend habeas corpus on his own; Congress had to authorize any such suspension. More dramatically, Taney added that only someone subject to the Articles of War (that is, someone in the military) could be brought to trial before a military commission.

Rehnquist does not take a position on the first issue, but he expresses concern that the second proposition is so "far-reaching"; and he complains that his predecessor as Chief Justice went well beyond what was necessary to vindicate Merryman's claim. What is even more interesting than the legal details is the fact that the Lincoln administration disregarded Taney's decision. And the country did not much object to the disregard.

In August and September 1862, the Lincoln administration again suspended the writ of habeas corpus, but it also went much further. It said that people "discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice affording aid and comfort to rebels" should be subject to "martial law and liable to trial and punishment by court-martial or military commissions." The Lincoln administration also authorized United States marshals and local police chiefs to arrest and to imprison any person "in any way giving aid and comfort to the enemy."

The ultimate result was the infamous Indianapolis Treason Trials, where the defendants, most prominently Lambdin P. Milligan, were charged with conspiracy against the government of the United States, including a ridiculous and doomed plan to abduct the Governor of Indiana. The big question in the case was whether Milligan and his alleged co-conspirators could be tried in military commissions, which were of course likely not to be neutral and independent in the middle of a war.

Ultimately the Supreme Court ruled that American civilians could not constitutionally be tried in military court even during times of war, if the civil courts were open, as they were in Indiana. Four concurring justices thought that this ruling was far too broad. They would have left the constitutional question undecided and concluded more narrowly that, under the Habeas Corpus Act of 1863, Congress had simply not authorized the trial of civilians in military courts. Rehnquist clearly agrees with the four concurring justices, believing that there was no occasion for the Court to issue a broad ruling about the extent of Congress's powers. As he observes, the Court would come to regret its language in the context of a special military trial ordered by President Roosevelt during World War II; the Court upheld that trial. What emerges from Rehnquist's sober discussion is a pretty damning evaluation of the Lincoln administration's utter disregard for civil liberties, and of the Supreme Court's inability to do much about it. In sum, "Lincoln and his Cabinet chose to suspend the writ of habeas corpus, interfere with freedom of speech and of the press, and try suspected political criminals before military commissions."

In World War I, the most important interferences with civil liberty involved not purely executive action but legislatively authorized restrictions on freedom of speech. In 1917, Congress enacted the Espionage Act. One section of that Act said that "whoever ... shall wilfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United Sates, or shall wilfully obstruct the recruiting or enlistment service of the United States" would be guilty of a crime. Another section said that any letter or writing "containing any matter advocating or urging treason, insurrection, or forcible resistance to any of the United States, is hereby declared to be nonmailable," and its mailing was deemed a crime.

Were these limitations on free speech acceptable under the First Amendment? The Supreme Court concluded that they were. Justice Oliver Wendell Holmes, writing for the Court in 1919, upheld the conviction of one Charles Schenck, who had been convicted of violating the act by printing and distributing leaflets urging draftees to resist the draft. The Court went so far as to uphold the ban on mailing materials that would tend to obstruct recruitment and enlistment services, even though the ban was applied to bar political magazines that expressed dissenting opinions from the mails. The socialist Eugene Debs, a presidential candidate, was himself convicted of violating the Espionage Act, and the Court upheld his conviction. About this episode Rehnquist writes mostly as a reporter, but he suggests skepticism about the Court's decisions, and he quietly notes that the Wilson administration "proved to have the same instinctive desire to suppress harsh criticism of the war effort as had the Lincoln administration during the Civil War."

The most famous, or most infamous, confrontation between civil liberty and the war-making power stemmed, of course, from the internment of Japanese-Americans during World War II. This confrontation much occupies Rehnquist, who is especially concerned to emphasize that the fear of ethnic Japanese included both the Issei (first generation immigrants who were not citizens under American law) and the Nisei (who were born in the United States and hence American citizens under the Fourteenth Amendment). Many public officials, including Earl Warren himself, called for the involuntary "relocation" of persons of Japanese ancestry (numbering over 100,000) from the possibly vulnerable West Coast to places within the interior of the United States. Eventually the Roosevelt administration came to agree that some kind of relocation was necessary.

It is an understatement to say that the decision has been much criticized, but consider the words of Secretary of War Henry L. Stimson: "What critics ignored was the situation that led to the evacuation. Japanese raids on the West Coast seemed not only possible but probable in the first months of the war, and it was quite impossible to be sure that the raiders would not receive important help from individuals of Japanese origin." The result included the imposition of a curfew on ethnic Japanese, who were then required to report to relocation centers, and ultimately a decision to relocate them to camps in the mountain states and in the interior of California. Rehnquist recounts that "there was no physical brutality, but there were certainly severe hardships--physical removal from the place where one lived, often forced sale of houses and businesses, and harsh living conditions in the spartan quarters of the internment centers."

In the face of constitutional attack, the Supreme Court unanimously upheld the curfew on grounds of military necessity: "We cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population.... We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with...." And in a remarkable opinion by the great civil libertarian Hugo Black, the Court also upheld the far more severe relocation requirement. The Court reasoned: "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." There were a number of separate opinions, the most subtle of them from Justice Robert Jackson, who argued that the Court should neither uphold nor invalidate the exclusion order--but that it should nonetheless release Korematsu from jail. Refusing to evaluate the order itself, Jackson wrote, "How does the Court know whether these orders have a reasonable basis in necessity? No evidence whatever on that subject has been taken by this or any other court.... 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."

Modern commentators think that Jackson did not go far enough, and that the relocation order reflected a vicious prejudice that the Court should not have countenanced. Rehnquist offers a more complicated judgment. He thinks that the problem with the modern criticism "is that it lumps together the cases of" the Issei and the Nisei. Insisting that the government must offer a great deal to justify a decision to round people up, even in wartime, he acknowledges that even citizens "may be excluded from sensitive military areas in the absence of a security clearance and may otherwise be denied access to any classified information." But Rehnquist thinks that "it pushes these propositions to an extreme to say that a sizable geographical area, including the residences of many citizens, may be declared off-limits and the residents required to move." Under modern constitutional doctrine, any racial classification requires an extremely powerful justification, which, in Rehnquist's view, the military could not offer here. "It should have taken far more substantial findings to justify this sort of discrimination, even in wartime."

Thus the government violated the constitutional rights of the Nisei. Yet--and here is Rehnquist's original argument--the Issei "were both by tradition and by law in a quite different category." Government can make distinctions between classes of aliens that it cannot make between classes of citizens. Against the conventional wisdom, Rehnquist urges that it was constitutional to treat the Issei differently from enemy aliens of German and Italian citizenship, since the latter were not concentrated near major defense plants, and since on the West Coast "there was the very real fear of attack by Japanese bombers flying from aircraft carriers, if not actual invasion by Japanese ground forces." Thus Rehnquist would apparently uphold the relocation order insofar as it applied to the Issei.

A far less famous abridgment of civil liberties during World War II involved Hawaii, which, a few hours after the attack on Pearl Harbor, was placed under martial law. The writ of habeas corpus was suspended there as well. And military rule in Hawaii was not a short-term affair; it lasted for almost three years. Several citizens, finding themselves under arrest, sought writs of habeas corpus. Invoking Milligan's successful argument during the Civil War, they complained that they had a right to be tried in civilian courts, not military tribunals. The Supreme Court agreed, avoiding any large constitutional question and writing narrowly that no existing law could be taken to authorize the military to supersede the civilian regime in these circumstances. Consistent with his general insistence that executive intrusions must be authorized by the legislature, Rehnquist agrees with the Court's judgment.

Rehnquist concludes with some general comments about the arc of American history. His basic story is a tribute to the separation of powers and to the system of checks and balances. The Civil War involved unilateral assertions of presidential authority, as Lincoln acted on his own, unaccompanied by congressional support and not much checked by the judiciary; and so he was responsible for the worst abuses. But both World Wars presented a sharp contrast: the executive had explicit legislative authorization to do what it did. There has also been "increasing resort to the courts since the Civil War," and the federal courts in particular have become central to final outcomes. Finally, free speech was heavily regulated during the Civil War, when "the government used a heavy-handed, blunderbuss approach; local agents in the field would seize newspapers and confiscate the presses of those who opposed its policy." In World War I, the government regulated radical criticism, but courts were at least available; and in World War II the government did not even attempt to regulate speech.

In Rehnquist's view, all this shows a "generally ameliorative trend." Still, he insists that "there is some truth to the maxim Inter arma silent leges, at least in the purely descriptive sense." This is owed to an inescapable practical fact: "the reluctance of courts to decide a case against the government on an issue of national security during a war." Nor is Rehnquist certain that this reluctance is inappropriate, in view of the extremely high stakes and the lack of judicial knowledge of the underlying problem. Thus he suggests that courts often do best not to decide cases in the heat of battle but to postpone decision until after war has ended, on the theory that civil liberties arguments will receive a more sympathetic hearing after the fact. He insists that the constitutional balance must shift "to some degree" against freedom, and toward order, in the midst of war. But he also applauds the fact that there is "every reason to think that the historic trend against the least justified of the curtailments of civil liberty in wartime will continue in the future."

This book can be read as a solid but unexciting combination of competent history, excellent anecdotes, and sensible if platitudinous commentary on hard issues of constitutional law. But such a judgment would scant the real interest of Rehnquist's discussion. A part of the interest obviously lies in its possible connections with the Chief Justice's judicial work. In his early years on the Court, Rehnquist was by far the most conservative member of the Court, a bit of a firebrand, sometimes described as the "Lone Ranger," offering biting, broad-gauged dissenting opinions taking on whole areas of constitutional law. In the last decade, the Chief Justice has usually struck a different tone, and sometimes written more cautious rulings, highly dependent on the facts of individual cases. Rehnquist wrote a narrow opinion in 1996, for example, striking down a North Carolina redistricting plan designed to increase black voting power; but his opinion was extremely narrow, and offered few broad pronouncements about racial redistricting. And, surprisingly, Rehnquist agreed with the Court's decision to strike down the all-male admissions policy of Virginia Military Institute--but only on the narrow ground that the all-female institution proposed as Virginia's remedy would be "distinctly inferior to the existing men's institution." It was Rehnquist, too, who wrote the Court's opinion upholding the Independent Counsel Act, an opinion that avoided any rigid rule that would govern future separation-of-powers cases. These decisions are in line with the analysis in his new book and with a distinctive tendency in his post-1980 rulings, a tendency toward caution and narrowness when the Court is thrust in the midst of an intense national debate.

Most treatments of civil liberties in wartime fall into one of two camps. For the national security camp, civil liberties are inevitably dampened during wartime. The very survival of the nation, they insist, may depend on such a dampening: in the middle of a war civil liberties, or some of them, are a luxury that even the most democratic nations are unable to afford. For the civil libertarian camp, a war is usually an excuse for repression, having much less to do with real needs than with efforts by panicked, prejudiced, or self-interested officials to insulate themselves from criticism. Civil libertarians insist that democratic imperatives are all the more important in wartime; it is here that the citizenry is properly engaged in deliberating about whether war-making is in fact the appropriate course.

Rehnquist is urging a more complicated and nuanced view, with considerable appeal of its own. It seems to be comprised of four elements. First, courts should generally ensure that any acts of suppression by the executive branch are authorized by the legislature. By itself, this may seem a bit technical, but it is no mere technicality to require that both branches of government are persuaded to abridge liberty. The nature of the national legislature makes it less likely--though certainly not impossible--that abridgements of freedom will occur when they are wholly gratuitous or unnecessary. Thus Rehnquist is proposing something important with his suggestion that the old system of checks and balances should be enlisted on liberty's behalf.

Second, courts should not take ambiguous legislative enactments as sufficient authorization to the executive. Congress must be explicit, crystal clear, if it wants to allow civil liberty to be abridged. Third, courts should insist on a genuine right (though not an absolute right) to engage in political dissent. If the government wants to abridge political speech, it should be required to show that the danger is real and imminent rather than fanciful. Fourth, courts should otherwise tread cautiously. They might refuse to assess liberty claims in the midst of war-making, in part because they might get caught up in the moment and issue decisions that they will come to regret. They should be acutely aware of this risk. Hence any judicial decisions should be narrow and avoid broad pronouncements. Courts should also be reluctant to second-guess plausible military judgments in the middle of a war; the stakes are too high, and the risk of judicial incompetence too great, to allow courts to maintain their ordinary stance.

What is most interesting about Rehnquist's suggestions, taken as a whole, is that they represent an emphatically institutional perspective on individual rights. In this sense, they return to the Constitution's original plan, which was to safeguard rights not mostly by explicit guarantees but by properly designed institutions. With respect to rights in wartime, Rehnquist is arguing on behalf of a genuine system of checks and balances, in which the executive (perhaps the least trustworthy, though likely the most informed, branch of government) is not permitted to do whatever it likes, and is checked by the legislature and also by the judiciary (likely the least informed, though perhaps the most trustworthy). Nor do Rehnquist's suggestions lack practical usefulness. To say that the legislature must authorize executive action, and that courts must be convinced that any abridgements are reasonable, is to provide significant protection against the worst abuses, without at the same time threatening judicial usurpation of government prerogatives in the midst of war.

Rehnquist's proposals would not give civil libertarians as much as they always want and occasionally deserve. In the Korematsu case, for example, Jackson's moderate position seems better than Rehnquist's moderate position. Let us agree, controversially, that no court should enjoin the kinds of quasi-military operations involved in the case. Even with that assumption, would it not be far better for the Court to say, at least after the fact, that both the Issei and the Nisei may not be jailed or otherwise punished for defying the relocation order? More generally, a refusal to adjudicate a claimed violation of liberty during war creates problems of its own, involving interim injustice, which may be quite serious; and Rehnquist does not say what remedy, if any, should be available to the plaintiff after the war has ended. (Apology? restitution? money damages?) There is also a question about how the government might prove, during wartime, that a danger is clear and imminent. May it, or must it, rely on classified materials? How can a court assess these? In any case, it is certainly possible to imagine contexts in which a nation, or a majority of its citizens, swept up in the inevitable passions of war, engages in unjustifiable suppression of civil liberty; in which the legislature authorizes the suppression; and in which courts are justified in acting without timidity.

Rehnquist's principal response to such objections is a practical one. Even if courts are justified in doing this, he believes, they are not likely to be inclined to do so. He may be right, and hence his more limited approach may be the most that we can reasonably expect. And the judicial strategies that he favors are pertinent not only to war-making. They apply in many contexts in which the Court is placed in the middle of a political thicket. Consider the recent court of appeals case invalidating the census for 2000: adopting a technique urged by Rehnquist, the court avoided the big constitutional questions and issued instead a narrow, modest opinion involving an interpretation of a complex statute. His book seems in places like little more than a civics text, but in fact the Chief Justice has put forward the ingredients of a highly original account of the proper role of the Supreme Court, a role that makes most sense in times of war, but that has its attractions whenever the Court is embroiled in great social controversies.

By Cass R. Sunstein