Civil Liberty in Wartime

by Chief Justice William A. Rehnquist

Civil Liberty in Wartime

Remarks of Supreme Court Chief Justice William A. Rehnquist

Director's Forum, Woodrow Wilson International Center for Scholars

November 17, 1999

Thank you, Mr. Hamilton, for your kind introduction. I would like to talk with you this morning about the issue of civil liberties in wartime. I will focus on the Civil War, World War I, and World War II. Generally, Chief Executives in wartime are not very sympathetic to the protection of civil liberties, and our experiences in these three wars demonstrate the point.

The Civil War

Even those of you who did not major in history probably know that Abraham Lincoln was elected President in November of 1860, and was inaugurated as President on March 4, 1861. Between the time of his election and his inauguration, the seven states of the deep south -- South Carolina, Georgia, Florida, Alabama, Mississippi and Texas -- had seceded from the Union and elected Jefferson Davis as their President. For the first six weeks of Lincoln's administration, the cabinet debated what to do about the Union garrison at Fort Sumter, on an island in the harbor of Charleston, South Carolina. In mid-April, the Confederate shore batteries opened up on the fort, and the garrison surrendered the next day. Lincoln called for 75,000 volunteers to put down the rebellion, and the four states of the upper south -- Virginia, North Carolina, Tennessee, and Arkansas -- seceded and joined the original seven states of the Confederacy. The Civil War had begun. Washington, D. C. went from being an interior capital to a capital on the very frontier of the Union, exposed to possible raids and even investment and capture by the Confederate forces.

Lincoln, fully aware of this danger, was most anxious that the 75,000 volunteers for whom he had called would arrive in Washington and defend the city against a possible Confederate attack. Many would come from the northeast -- Boston, New York, and Philadelphia. But all of the rail connections from the northeast into Washington ran through the city of Baltimore, 40 miles to the northeast. Herein lay a problem; there were numerous Confederate sympathizers in Baltimore and the city itself, at that time, had a reputation for unruliness -- it was known as "Mob City." To complicate matters further, it was necessary for passengers enroute from the northeast to Washington to change stations in Baltimore.

Shortly after troops from the northeast began arriving in Baltimore on their way to Washington, a riot broke out while soldiers were in transit from one station to another. A hostile crowd pelted the troops with stones. The troops in turn fired shots into the crowd. Several soldiers and several bystanders were killed.

That night, the chief of police of Baltimore, who was an avowed Confederate sympathizer, and the Mayor of Baltimore, who was a less open one, spearheaded a group of Confederate sympathizers who took matters into their own hands. They blew up the railroad bridges leading into Baltimore from the north. As a result, troops bound for Washington had to be sent on a circuitous journey by ship from a point on the Chesapeake Bay above Baltimore to Annapolis, from which they traveled to Washington by land.

In response to the situation in Baltimore, Lincoln, at the behest of his Secretary of State, William H. Seward, took the first step to curtail civil liberty -- he authorized General Winfield Scott, commander-in-chief of the Army, to suspend the writ of habeas corpus at any point he deemed necessary along the rail line from Philadelphia to Washington. Scott took full advantage of this authority, and several weeks later, federal troops arrested a man named Merryman, whom authorities suspected of being a major actor in the dynamiting of the railroad bridges. He was he confined in Fort McHenry, and immediately sued out a writ of habeas corpus.

The day after Merryman sought the writ, Chief Justice Roger Taney, who was sitting as a circuit judge in Baltimore, ordered the government to show cause why Merryman should not be released. A representative of the commandant of Fort McHenry appeared in court for the government to advise Taney that the writ of habeas corpus had been suspended, and asked for time to consult with the government in Washington. Taney refused, and issued an arrest warrant for the commandant. The next day, the marshal reported that in his effort to serve the writ he had been denied admission to the fort. Taney then issued an opinion in the case declaring that the President alone did not have the authority to suspend the writ of habeas corpus -- only Congress could do that -- and holding that Merryman's confinement was illegal. The Chief Justice, knowing that he could not enforce his order, sent a copy of it to Lincoln.

Lincoln ignored the order, but in his address to the special session of Congress which he had called to meet on July 4, 1861, he adverted to it in these words:

Must [the laws] be allowed to finally fail of execution even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen's liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, are all the laws but one to go unexecuted, and the government itself go to pieces less that one be violated?

Lincoln, with his usual incisiveness, put his finger on the debate that inevitably surrounds issues of civil liberties in wartime. If the country itself is in mortal danger, must we enforce every provision safeguarding individual liberties even though to do so will endanger the very government which is created by the Constitution? The question of whether only Congress may suspend it has never been authoritatively answered to this day, but the Lincoln administration proceeded to arrest and detain persons suspected of disloyal activities, including the mayor of Baltimore and the chief of police.

World War I

Civil liberties during World War I were also affected by actions of the President. Following the assassination by a Serbian nationalist of Archduke Ferdinand, heir to the throne of Austria-Hungary, in August of 1914 Germany invaded France by marching through neutral Belgium. Thus Germany and her ally Austria-Hungary went to war against Britain, France, and Russia.

The initial reaction of the United States public was to let Europe fight its own battles. President Woodrow Wilson at first concurred in this sentiment. In the presidential election of 1916, the Democratic Party's slogan was, "He kept us out of war", and Wilson narrowly won reelection.

In February 1917, however, Germany announced that it would sink without warning all ships, belligerent and neutral, in a zone around the Atlantic and Mediterranean coasts of Europe. On April 2, Wilson went before Congress and asked for a declaration of war against the Central Powers. Congress agreed, and soon thereafter Congress enacted a conscription law. At the time, American public opinion about the war was clearly divided.

In June 1917, Congress also enacted the Espionage Act, which took up fourteen pages in the Statutes at Large. Many of its provisions were directed against traditional espionage, exportation of arms, interference with maritime vessels, and the like --- matters of obvious concern in wartime. But there were at least two parts that did affect civil liberties.

One section of the Act made it a crime, whenever the United States was at war, to make or convey false reports with the intent to interfere with military operations or promote the success of America's enemies; to cause or attempt to cause disobedience or disloyalty in the armed forces; and to obstruct willfully the recruiting services. Another section barred from the mails all written matter that violated the statute.

The version of the Espionage Act that President Wilson submitted to Congress would have gone much further. Wilson's version provided for a $10,000 fine and ten years' imprisonment for any person convicted of publishing any information which would be declared by a presidential proclamation to be useful or possibly useful to the enemy. He insisted that such censorship would be "absolutely necessary to the public safety" and that it was "imperative that powers of this sort shall be granted". This provision, however, was defeated in the House by a vote of 184-144 and did not appear in the final bill.

Thus, the Wilson administration, during the First World War, proved to have the same instinctive desire to suppress harsh criticism of the war effort as had the Lincoln administration during the Civil War. There were differences, however. The Wilson administration relied more on laws passed by Congress than on executive fiat, and the courts were far more involved during the First World War than they had been during the Civil War. Though the courts during this period gave little relief to civil liberties claimants, the very fact that the claims were being reviewed by the judiciary was a step in the right direction for proponents of civil liberties during wartime.

World War II

Let us now move forward to World War II. I am one of the few in this room who can remember back to the Japanese attack on Pearl Harbor on December 7, 1941. Because it began for the United States by Japan's attack on Pearl Harbor, and Hitler's declaration of war, there was strong support for the war effort.

One of the most controversial actions of the government during World War II was the forced relocation of both Japanese aliens and American citizens of Japanese ancestry away from the West Coast. Secretary of War Henry L. Stimson proposed this course of action to the President over the objections of Attorney General Francis Biddle. President Roosevelt approved the forced relocation of anyone of Japanese background during a telephone conversation with Secretary Stimson because FDR did not feel that he had the time for a face to face meeting on the subject.

The Supreme Court reluctantly upheld this program during the war, but the judgment of history has been that a serious injustice was done, because there was no effort to separate the loyal from the disloyal. As often happens, the latter-day judgments, in my view, swing the pendulum too far the other way. With respect to the forced relocation of Japanese-Americans who were born in the United States of Japanese nationals -- and were therefore United States citizens -- even given the exigencies of wartime it is difficult to defend their mass forced relocation under present constitutional doctrine. But the relocation of the Japanese nationals residing in the United States -- typically the parents of those born in this country -- stands on quite a different footing. The authority of the government to deal with enemy aliens in time of war, according to established case law from our Court, is virtually plenary.

There were considerable differences between the way the Lincoln administration infringed on civil liberty and the way FDR's infringed on it. Lincoln often acted without any authority from Congress, and some of his measures unabashedly suppressed dissent. There was no such suppression of dissent in World War II, and most of the administration's acts hostile to civil liberty were based on laws passed by Congress. So the general trend from the 1860s to the 1940s was in the direction of greater sympathy to claims of civil liberty. But neither Lincoln nor FDR -- nor Woodrow Wilson during World War I -- could be described by any stretch of the imagination as a supporter of civil liberty during wartime.

Lincoln felt that the great task of his administration was to preserve the Union. If he could do it by following the Constitution, he would; but if he had to choose between preserving the Union or obeying the Constitution, he would quite willingly choose the former course. Franklin Roosevelt felt the great task of his wartime administration was to win World War II, and, like Lincoln, if forced to choose between a necessary war measure and obeying the Constitution, he would opt for the former. This is not necessarily a condemnation. Sometimes the notion that more civil liberties protections are better is simply not possible to implement during wartime.

Conclusions

The courts, for their part, have largely reserved the decisions favoring civil liberties in wartime to be handed down after the war was over. To lawyers and judges, this may seem a thoroughly undesirable state of affairs, but in the greater scheme of things it may be best for all concerned. The fact that judges are loath to strike down wartime measures while the war is going on is demonstrated both by our experience in the Civil War and in World War II. This fact represents something more than some sort of patriotic hysteria that holds the judiciary in its grip; it has been felt and even embraced by members of the Supreme Court who have championed civil liberty in peacetime. Witness Justice Hugo Black: he wrote the opinion for the Court upholding the forced relocation of Japanese Americans in 1944, but he also wrote the Court's opinion striking down martial law in Hawaii two years later.

There are obviously conflicting principles or public policies at work in this area of civil liberty in wartime. There may be some who think that here, as elsewhere, the more civil liberty the better. But neither presidents nor courts have ever operated on this principle. Wartime presidents are inclined to prefer claims based on military necessity to claims of individual liberty, and courts come to the rescue of civil liberty only after the war is over. There is a certain irony in this last fact, but the history of our nation suggests that both the nation and civil liberty have survived pretty well, if not totally unscathed, under it. Whether this is because of the actions of the Presidents and the courts, or in spite of them, I am not prepared to say.

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Justice Rehnquists's remarks at the Woodrow Wilson Center were based on his recently published book All the Laws but One: Civil Liberties in Wartime (Knopf, 1998).