7th December 1941 was a "Date which will Live in infamy." Those were the words of President Franklin D. Roosevelt in his famous speech to Congress following the attack by Japanese forces on the United States naval base at Pearl Harbour, Hawaii. One consequence of this was that President Roosevelt issued Executive Order 9066 - dated 19th February 1942. The Order authorised the Secretary for War 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." This exercise of Presidential power was justified in the Executive Order on the basis that "the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities." A further Executive Order was issued in 1942 creating a "War Relocation Authority.
A consequence of the Orders was that individuals with Japanese ancestry found themselves forced from their homes and being relocated to internment camps. Many of them were born in the USA and were US citizens. The last camp closed in 1946.
This was to lead to cases heard by the Supreme Court of the United States such as Yasui, Hirabayashi and Korematsu v United States 323 US 214 (1944). Korematsu was a 6 to 3 decision with the majority being Chief Justice Stone and Associate Justices Black, Reed, Douglas, Rutledge and Frankfurter. The majority decision was given by Justice Black with a concurring opinion by Justice Frankfurter. The dissenting justices were Roberts, Murphy and Jackson.
Mr Korematsu had his conviction for evading internment overturned in 1984 because it emerged that the United States Government had supplied false information in the original court case. However, the 1944 decision - that the Government’s use of racial discrimination by forcing Korematsu into a Japanese internment camp was Constitutional was not overturned.
United Kingdom:
Within the United Kingdom, internment of "enemy aliens" was conducted under Royal Prerogative power. Many were detained on the Isle of Man. (The island is part of the British Islands). Some 7000 detainees were deported, the majority to Canada, some to Australia. The liner Arandora Star left for Canada on 1 July 1940 carrying German and Italian internees. It was torpedoed and sunk with the loss of 714 lives, most of them internees.
Detention did not stop with enemy aliens. Parliament enacted the Emergency Powers (Defence) Act 1939 which enabled His Majesty by Order in Council to "make such Regulations (in this Act referred to as "Defence Regulations") as appear to him to be necessary or expedient for securing the public safety, the defence of the realm, the maintenance of public order and the efficient prosecution of any war His Majesty may be engaged, and for maintaining supplies and services essential to the life of the community." The most notable regulations were the Defence (General) Regulations 1939
containing the well-known Regulation 18B:
"If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained."
One important case arising from 18B was Liversidge v Anderson [1942] AC 206. Mr Liversidge (aka Perlzweig) lost his case but the speeches in the House of Lord (Appellate Committee) contain what is perhaps the most famous dissenting judgment in the common law world - that of Lord Atkin.
First let us note what the case was about. In the words of Viscount Maugham:
" ... by this appeal the appellant, so far as form is concerned, is seeking merely to have certain particulars from the defendants, the present Secretary of State for Home Affairs and his predecessor in that office, of their defence in an action of false imprisonment. The learned master, the judge in chambers (Tucker J.), and the Court of Appeal (MacKinnon, Luxmoore, and du Parcq L.JJ.) have all held that the appellant is not entitled to any of the particulars he claims. In such a case this House would not, generally speaking, entertain an appeal, but the circumstances are exceptional. The real object of the application is to raise at this early stage the vital question as to what onus, if any, lies on the respondents as defendants in the action in the circumstances of the case. The appellant is a person who was detained by an order made by Sir John Anderson as Home Secretary on May 26, 1940, under reg. 18B of the Defence (General) Regulations, 1939. The detention has been continued by the present Home Secretary. The validity of that detention has been raised in the action in which the appellant claims damages for false imprisonment, and consequential relief. Such an action used to be described as an action for trespass vi et armis. The general rule of law in these cases is well stated by Abbot C.J., delivering the judgment of the court in Doswell v. Impey (1823) 1 B & C 163, 169 . If, he says, persons having a limited authority “do any act beyond the limit of their authority, they thereby subject themselves to an action of trespass: but if the act done be within the limit of their authority, although it may be done through an erroneous or mistaken judgment, they are not thereby liable to such action.” The respondents rely on the order for the detention of the appellant above referred to. If it is valid, the action must clearly fail. The appellant, accordingly, seeks to throw on the respondents the burden of justifying the order. It will be convenient shortly to state the pleadings to show how, as a matter of pleading, the question of particulars arises."
The Secretary of State therefore had to have reasonable cause to believe one or more of the matters stated in the Regulation. The word "reasonable" normally imported a requirement of objectivity. Although Parliament had made the power subject to a reasonable belief, the House of Lords majority accepted the Home Secretary's statement that he held such a belief; in other words, that he believed he had reasonable cause. Viscount Maugham said that the court should "prefer a construction which will carry into effect the plain intention of those responsible" and Lord Macmillan that "it is right so to interpret emergency legislation as to promote rather than to defeat its efficacy". According to him, if the Secretary had acted in good faith, he need not disclose the basis for his decision, nor were his actions justiciable in a court of law. The majority of the Lords appear to have been greatly concerned with the fact that they were dealing with a matter of national security. In their view, it was not appropriate for a court to deal with matters of national security, especially as they were not privy to classified information that only the executive had.
In his dissenting speech, Lord Atkin stated:
"I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive. Their function is to give words their natural meaning, not, perhaps, in war time leaning towards liberty, but following the dictum of Pollock C.B. in Bowditch v. Balchin (1850) 5 Ex 378 , cited with approval by my noble and learned friend Lord Wright in Barnard v. Gorman [1941] AC 378, 393 : “In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute.” In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of King's Bench in the time of Charles I.
I protest, even if I do it alone,
against a strained construction put on words with the effect of giving an
uncontrolled power of imprisonment to the minister. To recapitulate: The words
have only one meaning. They are used with that meaning in statements of the
common law and in statutes. They have never been used in the sense now imputed
to them. They are used in the Defence Regulations in the natural meaning, and,
when it is intended to express the meaning now imputed to them, different and
apt words are used in the regulations generally and in this regulation in particular. Even if
it were relevant, which it is not, there is no absurdity or no such degree of
public mischief as would lead to a non-natural construction.
I know of only one authority
which might justify the suggested method of construction: “‘When I use a word,’
Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to
mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can
make words mean so many different things.’ ‘The question is,’ said Humpty
Dumpty, ‘which is to be master — that's all.’” (“Through the Looking Glass,” c.
vi.) After all this long discussion the question is whether the words “If a man
has” can mean “If a man thinks he has.” I am of opinion that they cannot, and
that the case should be decided accordingly."
The case of Ben Greene is also of interest. It raised the same question of law as the case of Liversidge v Anderson.
The UK of the 1970s:
In Northern Ireland, internment was introduced on 9th August 1971 under the Civil Authorities (Special Powers) Act. 342 people were arrested on that date. 17 people were killed in the first 48 hours. By the time internment ended on 5th December 1975, a total of 1981 people had been detained. See this timeline of these events.
America in the 2000s:
The long and complicated story of Guantanamo Bay, Cuba is yet another chapter in the history of detention on alleged public safety grounds. Guantanamo came into use in 2002 as a place to detain alleged "enemy combatants" and to try to place them beyond US legal jurisdiction. Although the legal position has changed due to decisions by the Supreme Court of the USA (Hamdan v Rumsfeld 2006 and Boumedienne v Bush 2008) the camp remains open albeit with the number of detainees reduced to around 40.
Good intentions:
The saying goes that the road to hell is paved with good intentions. Never was this more true than in many of the situations arising from internment. Much injustice and tragedy arose out of the desire for public safety. Some recognition of that was the posthumous presentation of the Presidential Medal of Freedom to Mr Hirabayashi in 2012 and to Mr Yasui in 2015. Mr Korematsu received the medal from President Clinton in 1998. In the United Kingdom, the fate of internees has received only minimal attention.
The case of Ben Greene is also of interest. It raised the same question of law as the case of Liversidge v Anderson.
The UK of the 1970s:
In Northern Ireland, internment was introduced on 9th August 1971 under the Civil Authorities (Special Powers) Act. 342 people were arrested on that date. 17 people were killed in the first 48 hours. By the time internment ended on 5th December 1975, a total of 1981 people had been detained. See this timeline of these events.
America in the 2000s:
The long and complicated story of Guantanamo Bay, Cuba is yet another chapter in the history of detention on alleged public safety grounds. Guantanamo came into use in 2002 as a place to detain alleged "enemy combatants" and to try to place them beyond US legal jurisdiction. Although the legal position has changed due to decisions by the Supreme Court of the USA (Hamdan v Rumsfeld 2006 and Boumedienne v Bush 2008) the camp remains open albeit with the number of detainees reduced to around 40.
Good intentions:
The saying goes that the road to hell is paved with good intentions. Never was this more true than in many of the situations arising from internment. Much injustice and tragedy arose out of the desire for public safety. Some recognition of that was the posthumous presentation of the Presidential Medal of Freedom to Mr Hirabayashi in 2012 and to Mr Yasui in 2015. Mr Korematsu received the medal from President Clinton in 1998. In the United Kingdom, the fate of internees has received only minimal attention.
Technically, the Korematsu decision has not been overruled (or overturned) but, in Trump v Hawaii, the decision was heavily criticised - see Constitution Daily 26 June 2018
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