National Security Versus Due Process: Korematsu Raises Its Ugly Head Sixty Years Later in Hamdi and Padilla

• Citation: Vol. 22 No. 3
• Publication year: 2010

Georgia State University Law Review

Volume 22 j 7

Issue 3 Spring 2006

3-1-2006

National Security Versus Due Process: Korematsu Raises Its Ugly Head Sixty Years Later in Hamdi and Padilla

Sarah A Whalin

Follow this and additional works at: http://digitalarchive.gsu.edu/gsulr Part of the Law Commons

Recommended Citation

Whalin, Sarah A. (2005) "National Security Versus Due Process: Korematsu Raises Its Ugly Head Sixty Years Later in Hamdi and Padilla," Georgia State University Law Review: Vol. 22: Iss. 3, Article 7. Available at: http://digitalarchive.gsu.edu/gsulr/vol22/iss3Z7

This Article is brought to you for free and open access by the College of Law Publications at Digital Archive @ GSU. It has been accepted for inclusion in Georgia State University Law Review by an authorized administrator of Digital Archive @ GSU. For more information, please contact digitalarchive@gsu.edu.

NATIONAL SECURITY VERSUS DUE PROCESS: KOREMATSU¹ RAISES ITS UGLY HEAD SIXTY YEARS LATER IN HAMDI² AND PADILLA³

Introduction

A precarious balance exists between the fundamental individual freedoms of U.S. citizens and the need for national security.⁴ During times of war, this balance tends to shift in favor of national security.⁵

Perhaps the most striking historical example of this shift toward national security is the internment of U.S. citizens of Japanese descent during World War JJ.⁶ Following the death of 2,403 Americans in the Japanese bombardment of Pearl Harbor on December 7, 1941, the government indefinitely detained 70,000 U.S. citizens of Japanese descent, without charges or trial in the name of national security.⁷

After World War JJ, the pendulum eventually swung back toward individual freedoms with statutes such as the Non-Detention Act of 1971, which provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of

Q

Congress." The government also "acknowledge[d] the fundamental

1. Korematsu v. United States, 323 U.S. 214 (1944).

2. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

3. Rumsfeld v. Padilla (Padilla ///), 542 U.S. 426 (2004).

4. See Hamdi, 542 U.S. at 545 (Souter, J., concurring) ("The defining character of American constitutional government is its constant tension between security and liberty .. ."); Thomas E. Baker, "The Most Wonderful Work . . .": Our Constitution Interpreted 1-5 (1996) (discussing the framing fathers' intent in drafting the United States Constitution to structure the government in such a way to avoid governmental tyranny and protect individual freedom).

5. See, e.g., Micah Herzig, Note, Is Korematsu Good Law in the Face of Terrorism? Procedural Due Process in the Security Versus Liberty Debate, 16 geo. immigr. L.J. 685 (2002) (discussing the historical balance between national security and due process as it applies to Zadvydas v. Davis, 533 U.S. 678 (2001), a case involving the detainment of an illegal alien); Neal R. Sonnett, Task force on Treatment of Enemy Combatants, Report to the House of Delegates 1 (2003), http://www.abanet.org/leadership/recommendations03/109.pdf.

6. See, e.g., Eugene v, Rostow, The Japanese American Cases—A Disaster, 54 Yale L.J. 489 (1945) (discussing the historical and political background of the Japanese internment camps).

7. Id. at 490; stone tweten, Road to Pearl Harbor (1994), http://history.acusd.edu/gen/WW2Timeline/RD-PEARL.html.

8. 18 U.S.C. § 4001(a) (1994).

711

injustice" of the Japanese internment camps and vowed to prevent anything similar from happening again.⁹

On September 11, 2001, 60 years after Pearl Harbor, the United States experienced its second major attack on home soil when al-Qaeda terrorists hijacked four commercial airliners and flew them into the World Trade Center and the Pentagon, killing 2,996 Americans.¹⁰ Despite the lessons of World War II's "fundamental injustice," one of the government's responses in the aftermath of the September 11 attacks was to detain U.S. citizens and hold them indefinitely without charges or trial in the name of national security.¹¹

This Note will discuss the history of the tension between due process and national security and the implications of two recent Supreme Court cases regarding the detainment of U.S. citizens. Part I will examine the historical background of the Court's justification for the Japanese internment camps and post-war denunciation of these decisions.¹² Part II will discuss the post-September 11 legislation and Supreme Court cases regarding the detainment of U.S. citizen terrorist suspects.¹³ Finally, Part III will examine the implications of these recent Court decisions and their effect on one citizen-detainee who still awaits final adjudication on the merits of his case.¹⁴

I. Historical Perspective

A. Japanese Internment: National Security Trumps Due Process

I. Executive and Legislative Authorization of Japanese Exclusion and Internment

Immediately after the December 7, 1941 attack on Pearl Harbor, the U.S. government arrested known enemy agents and fascist

9. Civil Liberties Act of 1988,50 U.S.C. § 1989 (2000).

10. See September 11, 2001 Victims, http://www.septemberl lvictims.com/septemberl lvictims/victims_list.htm (last visited Mar. 31, 2006).

11. See Hamdi v. Rumsfeld, 542 U.S. 507, 510 (2004); Padilla III, 542 U.S. 426, 432.

12. See infra Part I.

13. See infra Part II.

14. See infra Part HI.

2006] NATIONAL SECURITY AND DUE PROCESS 713

sympathizers residing within the country based on specific information compiled by police authorities.¹⁵ These individuals included U.S. citizens and aliens of Japanese, German, and Italian descent.¹⁶

Then, on February 19, 1942, President Franklin Roosevelt signed Executive Order 9066, authorizing military commanders to use their "discretion" to designate military areas "from which any or all persons may be excluded" to "protect[ ] against espionage and against sabotage."¹⁷ The President later signed Executive Order 9102, establishing the War Relocation Authority, "to provide for the removal from designated areas of persons whose removal is necessary in the interests of national security."¹⁸ Congress followed suit by giving statutory authority to exclude individuals from the designated military areas.¹⁹ While the executive orders and statute explicitly authorize only exclusion and make no specific mention of internment, the Supreme Court found an implied power to detain citizens as long as it was "confined to the precise purpose of the evacuation program."

Pursuant to these orders, the government drove 110,000 men, women, and children of Japanese descent, including 70,000 U.S. citizens, from their homes on the West Coast and imprisoned them in internment camps.²¹ The government held them there indefinitely without charges or trial.²² To be released, the prisoners had to

15. Rostow, supra note 6, at 492,496.

16. itf.at492n.il.

17. Exec. Order No. 9066, 7 Fed. Reg. 1407 (Feb. 19, 1942). This was in part a response to anti-Japanese sentiments on the West Coast that sought to exclude all persons of Japanese descent. See Rostow, supra note 6, at 497.

18. Exec. Order No. 9102,7 Fed. Reg. 2165 (Mar. 18,1942).

19. See Act of Mar. 21, 1942, ch. 191, 56 Stat 173 (1942) (codified as amended at 18 U.S.C. § 97a (Supp. 1943)) ("[Wjhoever shall enter, remain in, leave, or commit any act in any military area prescribed,... shall,... be guilty of a misdemeanor and upon conviction shall be liable to a fine ... not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense.").

20. Ex parte Endo, 323 U.S. 283,301-02 (1944).

21. See Rostow, supra note 6, at 490.

22. W.at502.

navigate a convoluted application process for grants of leave clearance and indefinite leave.²³

Application for leave clearance involved the government's determination of the internee's loyalty and an investigation of the effect of the individual's release on the "war program and upon the public peace and security."²⁴ The government set forth nine factors sufficient to deny leave clearance, including "failure or refusal to swear unqualified allegiance to the United States and to forswear any form of allegiance to the Japanese Emperor . . .; a request for repatriation or expatriation . . .; military training in Japan; employment on Japanese naval vessels; [or] three trips to Japan after the age of six."

If an internee managed to pass this step, he then had to apply for indefinite leave to actually receive permission to leave the internment camp. To obtain approval, the internee needed to meet one of 14 additional specifications regarding the adequacy and appropriateness of the internee's proposed employment and living arrangements. Even then, the government could deny the internee's application for indefinite leave if it determined the "community sentiment [was] unfavorable" or if the internee planned to live or work in an area closed to indefinite leave, including areas from which the government originally evacuated the internee.²⁸

This system of loyalty checks and leave applications allowed the government not only to detain citizens whose loyalty it had not yet established, but also to continue to detain citizens whom the

9q

government itself deemed were not a threat to national security. The government's holding of these citizens without charges or trial

23. See Ex parte Endo, 323 U.S. at 291-92 & n.9 (describing the application and review process for leave clearance and indefinite leave as set forth in the administrative instructions of the Handbook of July 20, 1943).

24. Id. at 292; see also Nanette Dembitz, Racial Discrimination and the Military Judgment: The Supreme Court's Korematsu and Endo Decisions, 45 COLUM. L. REV. 175, 210-11 (1945) (discussing the leave application process).

25. Ex parte Endo, 323 U.S. at 292 n.10 (citing the Handbook of July 20, 1943).

26. Id. at 292.

27. Id. at 292-93 (listing some of the requirements set forth in the Handbook of July 20, 1943).

28. Id. at 293.

29. See id. at 292-93; see...