The detention of belligerents until hostilities end is not new in American history. February 19th historically bears the weight of tyrants rule in the name of national security. The War Powers Act of 1941 led the way for the internment of Japanese American citizens. Like all War Powers Acts, the President was allowed to declare an enemy and created a “legal” landscape to strip rights away.

The abuse of executive orders have occured by many presidents. President Franklin D. Roosevelt had many. In 1941 he signed 383 executive orders and in 1942 he signed 289. The Japanese attack on Pearl Harbor happened on December 7th, 1941. On December 18th of 1941, The First War Powers Act was instituted. It was established to direct departments to communicate with each other, suspended conflicting laws, and censor whatever the executive wanted.

Executive Order 8985 states, “There is hereby established the Office of Censorship, at the head of which shall be a Director of Censorship. The Director of Censorship shall cause to be censored, in his absolute discretion, communications by mail, cable, radio, or other means of transmission passing between the United States and any foreign country or which may be carried by any vessel or other means of transportation touching at any port, place, or Territory of the United States and bound to or from any foreign country, in accordance with such rules and regulations as the President shall from time to time prescribe.

By February 19th, 1942, executive order 9066 was signed by FDR. This executive order stated, “Now, therefore, by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. The Secretary of War is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of War or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order. The designation of military areas in any region or locality shall supersede designations of prohibited and restricted areas by the Attorney General under the Proclamations of December 7 and 8, 1941, and shall supersede the responsibility and authority of the Attorney General under the said Proclamations in respect of such prohibited and restricted areas.”

The executive order didn’t specifically point out those with Japanese ancestory, but as we have seen with NDAA if you just keep it vague the federal government can scapegoat anyone. The Western Defense Command and Fourth Army Wartime Civil Control Administration issed a document instructed all those of Japanese Ancestory that they will be detained.

“All that portion of the City and County of San Francisco, lying generally west of the of the north-south line established by Junipero Serra Boulevard, Worchester Avenue, and Nineteenth Avenue, and lying generally north of the east-west line established by California Street, to the intersection of Market Street, and thence on Market Street to San Francisco Bay. All Japanese persons, both alien and non-alien, will be evacuated from the above designated area by 12:00 o’clock noon Tuesday, April 7, 1942.No Japanese person will be permitted to enter or leave the above described area after 8:00 a.m., Thursday, April 2, 1942, without obtaining special permission from the Provost Marshal at the Civil Control Station located at: 1701 Van Ness Avenue San Francisco, California.” Detainment Camps can be seen at this link here.

The Japanese interment was made possible by the War Powers Act which mandated departments to communicate with each other. The Census Bureau was one such department that aided. “The Census Bureau played a role in the confinement of more than 100,000 Americans of Japanese descent who were rounded up and held in internment camps, many until the war ended in 1945. In 1942, the Census turned over general statistics about where Japanese-Americans lived to the War Department. It was acting legally under the Second War Powers Act, which allowed the sharing of information for national security.”

As always, the Supreme Court rubber stamps everything the federal government does as “Constitutional!” In Korematsu v. United States “Korematsu had been arrested by the FBI for failing to report for relocation and was convicted in federal court in September 1942. The U.S. Supreme Court, in a sharply divided 6–3 decision, upheld Korematsu’s conviction in late 1944. The majority opinion, written by Justice Hugo Black, rejected the plaintiff’s discrimination argument and upheld the government’s right to relocate citizens in the face of wartime emergency.”

Justice Frankfurter said, “And being an exercise of the war power explicitly granted by the Constitution for safeguarding the national life by prosecuting war effectively, I find nothing in the Constitution which denies to Congress the power to enforce such a valid military order by making its violation an offense triable in the civil courts. To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours.”

Only 3 Justices dissented. Justice Roberts said, “This is not a case of keeping people off the streets at night as was Kiyoshi Hirabayashi v. United States, nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States.”

Justice Murphy dissented, ” Civilian Exclusion Order No. 34, banishing from a prescribed area of the Pacific Coast “all persons of Japanese ancestry, both alien and non-alien,” clearly does not meet that test. Being an obvious racial discrimination, the order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment. It further deprives these individuals of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely. In excommunicating them without benefit of hearings, this order also deprives them of all their constitutional rights to procedural due process. Yet no reasonable relation to an “immediate, imminent, and impending” public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law.”

Justice Jackson dissented, “Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself.”

We live in the “War on Terror,” a war whose duration could last indefinitely. This war, legitimized by the Authorization of the Use of Military Force, has led to the National Defense Authorization Act which gives the executive to name any enemy or belligerent and indefinitely detain that individual. As executive order 9066, like NDAA doesn’t define any enemy, but leaves it up to the interpretation of the president.

NDAA is continually being fought. Chris Hedges challenged section 1021 in a lawsuit on January 13, 2012. “The section permits the military to detain anyone, including U.S. citizens, who “substantially support”—an undefined legal term—al-Qaida, the Taliban or “associated forces,” again a term that is legally undefined. Those detained can be imprisoned indefinitely by the military and denied due process until “the end of hostilities.” In an age of permanent war this is probably a lifetime. Anyone detained under the NDAA can be sent, according to Section (c)(4), to any “foreign country or entity.” This is, in essence, extraordinary rendition of U.S. citizens. It empowers the government to ship detainees to the jails of some of the most repressive regimes on earth.”

September 2012, “Judge Forrest in September rejected the government’s arguments and ruled Section 1021(b)(2) invalid.” In a We Are Change video Chris Hedges goes over the timeline of his lawsuit with the Obama Administration. A permanent injunction was placed on NDAA due to its unconstitutionality, but within 24 hours the Obama Administration asked for an appeal till the Second Circuit heard the case. Judge Forrest denied the appeal. The lawyers to the Obama Administration then went to the Second Circuit to put a emergency stay (law to be put back into effect) on the NDAA. The Second Circuit gave the administration the stay.

Chris Hedges once again filed a lawsuit against the Obama Administration against NDAA in the Supreme Court. As irony would have it, 71 years later on February 19th, indefinite detention remains in law. The Supreme Court has denied to hear the lawsuit against Section 1021 of NDAA. “HEDGES, CHRISTOPHER, ET AL. V. OBAMA, PRESIDENT OF U.S., ET AL: The application to vacate stay addressed to Justice Scalia and referred to the Court is denied.”

As Chris Hedges would say,”At this point we just became a military dictatorship.” Now waiting the Second Circuit Court.

Kelli Sladick

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