From the Archive

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Over the last ten years, Densho has collected hundreds of hours of video testimony and tens of thousands of historical images. From the Archive is a monthly feature that highlights primary sources from the Densho Digital Archive to illustrate themes in Japanese American history. We hope that it will give you a sense of the rich depth of materials in the Archive. To access the entire collection, simply register for a free user account.

April 2007 - The War on Habeas Corpus

From Topaz Times, April 29, 1944, page 2 (denshopd-i142-00300)
"The Japanese in California should be under armed guard to the last man and woman right now and to hell with habeas corpus until the danger is over."
  - Los Angeles Times, February 16, 1942
"The Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right of habeas."
  - Attorney General Alberto Gonzales, January 17, 2007

Attorney General Alberto Gonzales' recent remarks about long-detained "enemy combatants" conjure unsettling comparisons to the Supreme Court cases that upheld the World War II incarceration of Japanese Americans. Current legal challenges to the treatment of prisoners at Guantanamo Bay, Cuba, spring from a key constitutional issue raised over sixty years ago by Gordon Hirabayashi, Fred Korematsu, and Mitsuye Endo: In wartime can the government suspend individuals' constitutional rights on the grounds of military necessity?

At a Senate Judiciary Committee hearing in January 2007, Gonzales defended legislation rushed through Congress in October 2006 to support the administration's handling of detainees. The Military Commissions Act strips even U.S. residents of the "Great Writ" of habeas corpus, the time-hallowed right to ask the court for release from unjust imprisonment.1 The principle of habeas corpus (Latin for "you may have the body") predates the Magna Carta and forms the bedrock of our justice system. Yet Gonzales informed astonished senators, "There is no express grant of habeas in the Constitution. There's a prohibition against taking it away." When his convoluted logic was questioned -- how can a right that doesn't exist be taken away?--Gonzales pronounced, "The Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right to habeas."

Article 1, Section 9, of the U.S. Constitution reads: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The conditions permitting suspension of this crucial right do not exist. In three post 9/11 decisions, the Supreme Court has ruled that both citizens and non-citizens designated as "enemy combatants," held either in the United States or at Guantanamo Bay, are entitled to contest their detention in federal U.S. courts. In a 2004 decision, Justice Sandra Day O'Connor wrote: "All agree that, absent suspension, the writ of habeas corpus …has remained a critical check on the Executive ensuring that it does not detain individuals except in accordance with the law."2

If a person can be indefinitely imprisoned without trial by executive fiat, critical protections in the Bill of Rights become meaningless:

  • Freedom of speech, press, religion, assembly, and right to petition government (First Amendment)
  • Freedom from unwarranted search and seizure without probable cause (Fourth Amendment)
  • Right not to be deprived of life, liberty, or property without due process of law (Fifth Amendment)
  • Right to a speedy and public trial by jury, to hear the charges and witnesses, to be defended by counsel (Sixth and Seventh Amendments)
  • Freedom from cruel and unusual punishment (Eighth Amendment) 3

In the World War II cases contesting the mass detention of Japanese Americans, the Supreme Court ducked the problematic constitutional questions as much as possible. They ruled narrowly in Hirabayashi's case, stating only that the government could enforce the curfew Hirabayashi deliberately violated. In Korematsu v. United States, the 1944 decision long denounced but never overturned, the court acquiesced to the Army's claims of military necessity. In the Endo decision, timed to coincide with the closure of the camps already underway, the Court simply said a loyal citizen could not be held against her will. They declined to rule on the legality of the incarceration itself and declared her claim to habeas corpus moot. 4

The justices were fully aware of the constitutional questions they were avoiding; a memo dated June 4, 1943, preserved in the Densho digital archive, reveals as much. Regarding Gordon Hirabayashi's challenge, Justice Felix Frankfurter wrote Chief Justice Harlan Stone to warn him that the case invited the danger of bringing "a thousand habeas corpus suits." "It is unwise to indicate by direct language that there may be modes of relief for those now in the internment camps," he cautioned, adding that the Court should not "encourage hopes, which to put it very mildly, are not likely to be fulfilled." 5

While in the 1940s only a handful of nisei challenged their imprisonment through the courts, others in the camps objected to the violation of their rights as citizens. One Densho interviewee, Mits Koshiyama, recalls how as a high school student at the Heart Mountain "relocation center" the injustice of his situation dawned on him:

A funny thing, when I went to school there, nobody talked about the Constitution and the Bill of Rights and the deprivation of our constitutional rights…. I do remember a student writing, "Why We Are Prisoners in a Concentration Camp." I remember that. I, I thought, "Gee, that kid there is really bright and has a lot of courage to write a composition like that."…I knew this kid was right. Why were we there? We didn't do anything wrong. We were denied due process of the law, which is supposed to be God-given right to all Americans.

Mits acted on his convictions when he received his draft notice at the age of nineteen. Along with sixty-two other nisei detained at Heart Mountain, he refused induction until his constitutional rights were restored, and for his stand served two years at McNeil Island Federal Penitentiary.

While the resisters' position remains controversial within the Japanese American community, Mits's conscience was clear:

You know presidents come and go, teachers come and go, governments come and go -- but... my soul was clean because I, I really believed in the Constitution, and I believed that they should protect me when I needed it the most. And that belief in that Constitution pulled me through all this difficulties that I had during the war years. I, I knew that sooner or later -- I'm not a prophet or anything -- but I know by, let's say common sense, that sooner or later after the war that people were going to realize that standing up for constitutional rights is the most important thing. And it's proven to be true.

Now that we are in the midst of another war, and fundamental civil rights are again compromised by claims of national security, we hope Mits is correct. In response to Attorney General Gonzales's astounding assertion that the Constitution sets conditions for suspending a right it does not grant in the first place, an incredulous Senator Arlen Specter declared, "You…are violating common sense, Mr. Attorney General." We are heartened by one development: prominent senators vow to pass legislation restoring the essential right of habeas corpus. Common sense and our fundamental system of justice may yet prevail.

1. Ari Melber, "Blink Tanks Fight to Restore Habeas Corpus," The Nation (Jan. 16, 2007; online edition), summarizes the Military Commissions Act's provisions: "The law dilutes restrictions against torture; provides new immunity for war criminals; eliminates habeas corpus, the sacrosanct right to go to court and challenge government detention, for US residents; and authorizes rigged military trials for people captured on and off the battlefield, without any oversight by American courts." [ link ]

2. Hamdi v. Rumsfeld, 03-6696 (2004). The case ruled that a citizen detainee has the right to trial in U.S. federal court. [ link ] An earlier decision, Rasul v. Bush, 03-334 (2004) [ link ], held that the Guantanamo detainees should have access to the federal courts, and in Hamdan v. Rumsfeld, 05-184 (2006) [ link ], the Court declared that Bush's military tribunals violate international law.

3. Legal commentators, including John Dean, White House counsel to Richard Nixon during the Watergate scandal, note that following Gonzales's logic means the president could do away with any amendment stated in the negative: "Consider, for example, the First Amendment's prohibitions that 'Congress shall make no law respecting…' the free exercise of religion, freedom of speech, or freedom of the press." Dean points out, "If Gonzales is correct, the President could do away with any or all of these rights; since they were not expressly granted by the Constitution, he is free to do so." See "The Controversy over Curtailing Habeas Corpus Rights: Why It Is a Bad Day for the Constitution Whenever Attorney General Alberto Gonzales Testifies" (FindLaw website, Jan. 26, 2007) [ link ]

4. Justice Frank Murphy concurred with the Endo decision but added: "I am of the view that detention in Relocation Centers of persons of Japanese ancestry regardless of loyalty is not only unauthorized by Congress or the Executive but is another example of the unconstitutional resort to racism inherent in the entire evacuation program. As stated more fully in my dissenting opinion in Fred Toyosaburo Korematsu v. United States, racial discrimination of this nature bears no reasonable relation to military necessity and is utterly foreign to the ideals and traditions of the American people." Ex Parte Mitsuye Endo, 323 U.S. 283 (1944). [ link ]

5. Peter Irons, Justice at War: The Story of the Japanese American Internment Cases (Berkeley: University of California Press, 1983), pp. 239-40, places Frankfurter's letter in the context of the justices' pact to rule as narrowly as possible and avoid undermining the mass removal and detention. [ link ]

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