Hirabayashi v. United States, Korematsu v. United States, and Duncan v. Kahanomoku
The restrictions curfew and forced relocation imposed by the government on American citizens of Japanese descent during World War II, raised the Court’s reasoning in the Milligan Case. After the attack on Pearl Harbor, Congress made it a crime for Japanese Americans to enter or remain in military zones designated by the President. Under this authority, the commanding general of the West Coast region ordered all such persons to obey curfews and to report to relocation centers for internment. The curfew order was upheld unanimously in Hirabayashi v. United States (1943) as necessary to prevent espionage and sabotage in an area threatened by military attack. No question of martial law or military tribunals was involved. When the Court finally reached the question of forced evacuation and relocation camps in Korematsu v. United States (1944), the majority followed the same reasoning of military necessity and potential danger. At the same time, the Court in Ex part Endo (1944), made some amends by approving the release on habeas corpus of a Japanese American of established loyalty from a relocation camp.
Following the Japanese attack on Pearl Harbor, the governor of Hawaii suspended the writ of habeas corpus and placed the territory under martial law. After much delay, the Court held in Duncan v. Kahanomoku (1946), that the establishment of military tribunals to try civilians had been illegal. Although the military operations in Hawaii were very similar to those in Indiana during the Civil War, the Duncan opinion did not rely heavily on Milligan, and Justice Murphy stood by the rigid rule of that case that military trials are unconstitutional except in an actual field of military operations.
German saboteurs who landed on the East coast of the United States in 1942 with intent to destroy defense facilities were denied access to the civil courts on capture and were tried by military commissions on presidential order. Their defense was based on Milligan, but the precedent was rejected by the Supreme Court in Ex parte Quirin (1942).
President Franklin D. Roosevelt signed Executive Order 9066 on February 19, 1942. Whether the curfew and the forced evacuation policies could have been authorized by the order, alone, resting on the President’s power as Commander in Chief, was effectively a moot question, given that the Roosevelt Administration was successful in persuading Congress to pass a statute implementing the orders. Francis Biddle, Attorney General under FDR, observed that the President was not “much concerned with the gravity or implications of this step. He was never theoretical about things. What must be done to defend the country must be done.” Biddle said of Roosevelt: “Nor do I think that the constitutional difficulty plagues him—the Constitution has never greatly bothered any wartime President. That was a question of law, which ultimately the Supreme Court must decide. And meanwhile—probably a long meanwhile—we must get on with the war.” Biddle argued strenuously against the orders, but he was overmatched by the Department of Defense and other voices within the administration. In 1962, he wrote that internment had “subjected Americans to the shame of being classed as enemies of their native country without any evidence indicating disloyalty.”
The incarceration of Japanese Americans citizens during the Second World War was one of the most flagrant violations of civil rights ever inflicted by the United States government. All three branches of government—executive, legislative and judicial—lost their constitutional compass. In its attribution to the President and Congress of sweeping “war powers,” broad enough to swallow up the citzenry’s rights to due process of law, government officials were blatant in their disregard of cherished American liberties and indifferent to the rule of law.