Student Worksheet 2: THREE CIVIL LIBERTIES CASES IN WARTIME

The Civil War

Early in the Civil War President Abraham Lincoln ordered that any person who discouraged voluntary

enlistments, resisted the draft, or helped the Confederates should be tried and punished by a military

commission.

Lambdin P. Milligan, a civilian living in Indiana and a member of the Sons of Liberty, an organization

accused of revolutionary aims against the government, was arrested in 1864. He was charged with

conspiracy, giving aid and comfort to the Confederates, and inciting people to insurrection. The Indiana

civil courts were open at the time, but Milligan was tried by a military commission, convicted, and

sentenced to hang.

Milligan sought a writ of habeas corpus, claiming that his trial had been illegal because the military

commission had no jurisdiction over the case.

In 1866 the Supreme Court ruled in Milligan's favor and set him free, declaring: "Martial law can never

exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is

also confined to the locality of actual war." Milligan, the Court said, had been denied a trial by jury. "This

privilege is a vital principle, underlying the whole administration of criminal justice..." If a military

commander has the power "to suspend all civil rights and their remedies, and subject citizens as well as

soldiers to the rule of his will...republican government is a failure, and there is an end of liberty

regulated by law."

World War I

After the United States declared war on the Central Powers in April 1917, Congress passed the

Espionage Act, which threatened imprisonment to those "urging treason, insurrection, or forcible

resistance to any law of the United States." Charles Schenck was arrested and convicted for violating the

act because he printed and distributed to draftees leaflets urging them to refuse to go into the armed

forces.

Schenck took his case to the Supreme Court, arguing that his conviction had violated his First

Amendment rights of freedom of the press. In a unanimous decision, the Court upheld his conviction.

Justice Oliver Wendell Holmes wrote that "in ordinary times" what was said in the leaflets would have

been "protected by the First Amendment to the Constitution.... But the character of every act depends

upon the circumstances in which it is done. The most stringent protection of free speech would not

protect a man in falsely shouting fire in a theater and causing a panic...." The question, he wrote, "is

whether the words used...are of such a nature as to create a clear and present danger" that bring about

"evils that Congress has a right to prevent....When a nation is at war many things that might be said in

time of peace are such a hindrance to its effort that their utterance will not be endured so long as men

fight."

World War II

At the time of the Japanese attack on Pearl Harbor on December 7, 1941, more than 100,000 people of

Japanese background lived on the west coast of the U.S. More than half, mostly young people, were

American citizens. Most older Japanese were not citizens because U.S. laws at the time did not permit

citizenship for them.

Within days a report from San Francisco said that 20,000 Japanese living there were ready to attack the

city; in Los Angeles radar screens showed unidentified flying objects and antiaircraft guns opened fire;

near Seattle reports warned that enemy agents planned huge forest fires in the shape of an arrow

aimed at the city. People on the west coast were very jittery.

On February 19, 1942, President Franklin D. Roosevelt issued Executive Order 9066, which provided for

the removal of all ethnic Japanese, whether they were citizens or not. Forced to leave their homes and

most of their belongings, they were first taken to fairgrounds, camps, and racetracks, then moved a few

months later to permanent relocation camps in desert and uninhabited areas of California, Arizona,

Idaho, Wyoming, Colorado, and Utah. They lived in barracks and worked at unskilled jobs like harvesting

sugar beets, for which they earned $8 a month. Doctors and teachers might earn as much as $19.

One Japanese man, Fred T. Korematsu, fought efforts to remove him from his home in San Leandro,

California, to the Supreme Court. But a 6-3 majority ruled against him. The removal order, the Court

said, had resulted from a threat to the security of the United States, not because of hatred of the

Japanese or their race. Justice Hugo Black wrote, "There was evidence of disloyalty on the part of some.

The military authorities declared the need for action was great and time was short."

Writing in 1984 in a reopened case that erased Mr. Korematsu's conviction, District Judge Marilyn

Hall Patel, said of the earlier decision, "It stands as a caution that in times of distress the shield of

military necessity and national security must not be used to protect governmental actions from close

scrutiny and accountability. It stands as a caution that in times of international hostility and antagonisms

our institutions, legislative, executive and judicial, must be prepared to exercise their authority to

protect all citizens from the petty fears and prejudices that are so easily aroused."

Many years after the war, ethnic Japanese who had suffered relocation received some payment in

compensation.