1/18/2007(C) Copyright Sean Wilson. 2007.1 Check Sound Check Mike Time

1/18/2007 (C) Copyright Sean Wilson. 2007. 1

Check Sound

Check Mike

Time


Today’s Lecture:

Presidents & War

1. Lincoln

2. Roosevelt


Lecture Organization:

• Class Announcements

• Review

• Presidents, War & Power

Time

• Lincoln & the Civil War

• The Milligan Principle

• The WWII Internments


Class Announcements

-- Exams scores were emailed

-- Your last quiz will be posted on Friday

-- Lectures will be current on-line on Friday

-- Last two lectures may not appear on line

Any Questions?

Time


Review

1. President and “the law”

-- firing power and the pardon power could be used to keep the President above the law (in theory)

-- Nixon received a blanket pardon

-- several ways to check this:

• impeachment power

• Congressional hearings

• Independent Council

(had its own problems of politicization)

2. Executive Privilege

-- United States v. Nixon: the privilege exists, but it cannot block information sought by a criminal grand jury

3. War-making power

-- The original wording of the Constitution gave Congress complete jurisdiction over when and how war starts

-- the changed wording only gave Congress the power to declare war

(this was a stingier concept)

-- the idea was to give the executive some control over initiating defensive hostility

-- in practice, we saw that hostilities often began without Congressional declarations

-- often, declarations are a political formality

-- presidents subsequent to Vietnam, however, have been obtaining authorizations to use force quite regularly

(made good politics – build a consensus first, and launch the war with a democratic ritual)

4. War-powers Act

-- passed right after the Saturday Night Massacre

-- Vetoed by Nixon

-- Veto would not have been overridden but for Nixon’s firings

-- one problem with the law is that it allows Congress to approve 60 days worth of fighting without ever declaring war. (Congress does have a 60 day hall pass. It can only declare or not declare)


Presidents, War and Power

1. Let’s begin the lecture with two general observations:

-- seems true historically, especially for “big” wars.

• property rights in WWI and WW2

• speech rights in WWI (Wilson)

• Japanese citizen detention, Lincoln and the Civil War, etc.The President is the major benefactor of the

power

illustration

JudiciaryCongressPresident

States

Feds

… The feds seem to become stronger during war

From an “internal” point of view …The president becomes the strongest, most likely because of its institutional design [explain]

Government seems more powerful during times of war


Lincoln and The Civil War

1. The 1860 election: Lincoln wins

2. Secession:

-- South Carolina secedes before Lincoln even takes office

-- by February of 1861, 6 other states join

(one month prior to Lincoln’s inauguration)

3. Lincoln had to go to the capital under cover of darkness because his advisors feared for his life

4. South Carolina tapes Fort Sumter

5. Four other states secede and the war begins

6. Three border states (Missouri, Kentucky and Maryland) stayed within the union

7. Lincoln's negotiating position:

-- At first, tries to pacify the South:

(Slavery can stay in the south, but can’t go out West).

-- Once the fighting starts, he changes his mind:

Either/or scenario

(either we are one unified country with slavery abolished or we are two separate countries).

“fighting the revolutionary generation’s fight”


1. Things Lincoln did:

• Blockade -- He ordered a blockade of the confederate ports and expanded the regular army beyond its legal limit.

• Spending power -- And he directed government expenditures in advance of government appropriations.

• Writ of habeas corpus -- He suspended the writ of habeas corpus

• Martial law – he authorized military commanders to declare martial law in areas behind enemy lines.

Lincoln and the war --

Opponents of the war were termed poisonous copperheads. Some 13,000 persons were imprisoned for anti-war activities.

[Source -- Allan J. Lichtman, Historian]

Explain Habeas and its relationship to martial lawQuestion:

Is Lincoln allowed to do these things?

Question:

What does your mind “look at” when you

answer these questions?



Illustration

“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.” [section 9 – limitation on CONGRESS]

Suspension Clause

Congress has the spending power – Section 8.

Spending power

Free speech clause“Congress shall pass no law abridging the freedom of speech”

Question:

Does “law” matter in a time of war – and should

it matter?


4. Several important principles to keep in mind

-- Lincoln’s action were supported by the “rump” Congress [explain]

-- they were more than happy to have the president assume “emergency power”

-- to a large extent, the same is true with Wilson and FDR

-- some wars have greater stakes

-- there might be a relationship between the degree to which power is “grabbed” from legality and the severity of the risk faced by the polity

Congressional Support

Extraordinary Cases of War



The Milligan Principle

1. The law of enemy combatants really begins with the case of Ex Parte Miligan (1866)

Lambden P. Milligan was an agitator for the confederacy during the civil war

He lived in Indiana, which was on the side of the Union and had not experienced invasion or battle

he had engaged in various acts of “disloyalty”

sentenced to death by a military commission (not a court) in Indiana

The war had already ended

He petitioned for Habeas Corpus

Milligan’s activities --

He openly organized groups and gave speeches in support of the South. He also was involved in efforts to persuade men not to join the Union army. At one point Milligan and his fellow Copperheads were suspected of hatching a plan to raid prisoner of war camps in Illinois, Indiana, and Ohio and release the imprisoned Confederate soldiers, who would then take control of the three states.

[Source: Epstein/ Walker]


Illustration

“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.” [section 9 – limitation on CONGRESS]

Suspension Clause


Illustration

‘Congress creates the Courts’

Courts clause

‘The Courts have life tenured judges appointed by pres and approved by Senate

Judges clause

‘Must have jury trials”

Juries

Question:

Who SHOULD win this case?

Question:

Would your conclusion be different if Milligan were part of a secret confederate war

effort (e.g., confederate terrorist group?)


The Milligan Principle

3. The ruling:

-- Suspension of Habeas was unconstitutional

-- The logic: “boots on the ground” [explain]

-- where civil institutions are functioning, habeas cannot be suspended.

-- but where “boots are on the ground,” habeas can be suspended

illustration

State A State B

Battle Ground

The President becomes a “power ranger:” can suspend habeas

Big Question:

What if CONGRESS AND THE PRESIDENT wanted to suspend

habeas in State A? Is that allowed?

Majority: No one can suspend in Indiana

Minority: Congress can suspend in Indiana


WW II Internments

1. World War II:

-- The Japanese had moved into Vietnam, the U.S. decided it would cease trade with Japan

-- Pearl Harbor is bombed

-- Massive hysteria that Japan was going to attack the pacific coast of the United States

[Map]

-- they did shell Santa Barbara California and Sea Side, Oregon

-- Japanese submarine had sunk a ship near Seattle Washington


WW II Internments

2. The “solution”

-- The hysteria: if there is an invasion, Japanese Americans will be loyal to Japan, not America

(“argument from subversives”)

-- “Intern” all Japanese Americans

Roosevelt then signed executive order 9066.

(Gave the military the authority to round up Japanese)

(Congress then backed up the order with a law that imposed criminal penalties for violating military orders)

Dewitt’s first move: a nighttime curfew for all those of Japanese ancestry

“A Jap‘s a Jap”

The army commander on the west coast, general john Dewitt told a congressional panel that “a Jap’s a Jap; I have no confidence in their loyalty at all.” General Dewitt prepared what he called a final recommendation to his superiors in the war department: “the Japanese race is an enemy race,” and said there were 112,000 potential Japanese enemies at large on the west coast. To protect military bases from the dangers of espionage and sabotage, Dewitt urged that the Japanese be placed in internment camps.


Dewitt’s next move: “exclusion orders”

Required Japanese to report to “Army Induction Centers”

These centers were crude

There were ultimately 10 camps located in remote areas

(california, idaho, wyoming, utah, arizona, and arkansas -- mostly on indian reservations)

3. Fred Korematzu

23 year old American citizen

Tried to enlist for the in the US Army, but stomach ulcers kept him out

One Week to Evacuate --

Japanese Americans were given one week to dispose of their household goods and property. many were forced to sell their homes, farmers and businesses at “fire sale” prices, losing most of what they owned after years of hard work. each person was allowed to bring just one suit case, and many family heirlooms were left behind and never regained.

Temporary Centers --

The assembly centers were mostly located at race tracks and fairgrounds, in which the evacuees lived in horse stalls and tents, while army crews rapidly constructed what were called relocation centers.

Permanent Facilities --

Each camp was built to hold 10,000 Japanese Americans, who lived in barracks composed of pine board and tar paper without any insulation. The camps were surrounded with barbed wire and guard towers. The assembly centers were mostly located at race tracks and fairgrounds, in which the evacuees lived in horse stalls and tents, while army crews rapidly constructed what were called relocation centers.

WW II Internments


He tried to help the civilian effort out by becoming a welder in a shipyard making navy vessels

Union expelled him because he was Japanese

The detention order required him to report to the internment camp

He tried to avoid it

Southern California, facial surgery, claiming to be Mexican

He changed his last name

WW II Internments


Decided to turn himself in and challenge the constitutionality of the internment

ACLU will defend him

He is sent to a camp Topaz Texas

5. The Court decision

The Court upholds the internments

WW II Internments

Question:

How do you think the Court rules, and why?

Question:

What does this case say about how the Court functions in American Government?

The opinion --

We uphold the exclusion order as of the time it was made and when the petitioner violated it. IN doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. But hardships are a part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and n time of war the burden is always heavier.

Question:

What is the rule of law in this case?


6. The truth about the threat level

A report commissioned by the Roosevelt administration had found that 90-98% of the American-born Japanese were loyal

Military intelligence reports had advised general Dewitt that the internment was unnecessary.

WW II Internments


Germans posed much more of a theoretical threat in terms of people who were here

(German subs were sinking ships on a regular basis)

(German espionage had occurred: 8 German spies were convicted and executed)

Not a single Japanese American was ever arrested for espionage

WW II Internments


7. Korematsu’s shame

8. The rest of the story

His conviction was later reversed

Lawyers arguing the case for the government lied to the Court

Clinton presented Korematsu with the presidential medal of freedom in January of 1998.

9. “I’m American!”

Korematsu’s silence --

Korematsu, like many Japanese Americans, was very ashamed of his criminal conviction. The Japanese Americans tended not to talk about them. In fact, Korematsu’s daughter came home from school one day and said, “dad, we learned in social studies about the Korematsu case -- were we related to them?” He didn’t even tell his family.

Cover up? --

The lawyers arguing the case had taken the position before the supreme court that the evacuation was absolutely necessary and the only way to protect the west coast, when, in fact, inside the justice department, they were writing a memoranda to each other saying, “hey there is a report on the inside that advises general Dewitt that it is not necessary.” One justice department lawyer writes a memo to another saying, you have a duty to tell the court about that study. But the lead lawyer for the government just ignored it and represented to the court that it was absolutely necessary. Dewitt had been claiming that there had been radio signaling to Japanese subs by Japanese people off the coast, but there were inside intelligence reports flatly contradicting that. So the solicitor general stood by the espionage claims, and the Court had to assume that the representation was true.

WW II Internments Time

Documents

1/18/2007(C) Copyright Sean Wilson. 2007.1 Check Sound Check Mike Time