vol. 7, no. 12

AMERICAN CIVIL LIBERTIES UNION-NEWS

FREE SPEECH FREE PRESS FREE ASSEMBLAGE

“Eternal is the price of liberty.”

Vol. VII SAN FRANCISCO, CALIFORNIA, DECEMBER, 1942 No. 12

ANTI-SEMITISM CHARGES FILED

Removal of Colonel Serving on Exclusion Hearing Board Sought

Charging one of the three Army officers hearing individual exclusion cases with anti-Semitism and red-baiting, the Northern California branch of the A. C. L. U. has written to the Secretary of War requesting his removal as unfit for service on the board. The officers were appointed by General J. L. DeWitt last August to act as a “‘hearing board for the removal of citizens deemed to be dangerous or potentially dangerous to military security.”’ At least seventy citizens alleged to have pro-Axis sympathies have thus far been excluded from the Pacific Coast.

Seek Removal Of Col. McLean

The Union’s letter, signed by Ernest Beandsig, was directed particularly to the con- tinued service on the Board ef Col. McLean who was engaged in the active practice of the law in Pennsylvania before the war. “In the opinion of my Committee,” said the letter, ‘‘he has shown himself to be temperandamentally unsuited to the judicial position he is now holding.”

The contentions were based principally on the experiences of the Union’s disector at the hearing for Lorenz C. Carlsen on Ocandtober 23. “The Board objected very stren- uously to publicity about the Fusco case which appeared in the October issue of our A.C.L.U.—NEWS. The Board sought to imandpress upon me,” wrote Mr. Besig, “that if I appeared for Mr. Carlsen it would be highly ‘unethical’ to publicize any part of the proceedings. Col. McLean, for some strange reason assumed that I was a Comandmunist ‘sent by Bridges,’ as he put it, and — “in my part of the country you’d be skinned alive.

But the Union objected particularly to Col. McLean’s obvious anti-Semitism rather than his expressed hostility toward the Union’s director. During questioning about the Bund, ‘Col. McLean volunteered the statement, apropos of nothing, that such an organization as the Bund made things bad for all Germans in the United States, ‘the same as some of the better class Jews have to suffer for some of the rabble.’ ”’

Indulges In Anti-Semtic Tirades

‘An informant,” the letter went on to say, “whose case is now pending before the Board and who knew nothing about my own experiences before it, confirmed my feelings about Col. McLean. He stated to me that ‘Col. McLean indulges in anti-Semanditic tirades. He foresees world domination by the Jews after the war is over.’ This same informant told me that Col. McLean had expressed the hope that the Germans and Russians would annihilate each other, and that he also expressed himself against Negroes.”

“We hope,” concluded the letter, “that an appropriate investigation will be con- ducted, and that a less prejudiced officer will supplant Col. McLean, if our charges are sustained.”

The national office of the A.C.L.U., while opposed to any exclusions by military offi- cers, has suggested to the Secretary of War the establishment of a board of review com- posed essentially of civilians, to pass upon. the decisions of the Military Board. It has also. recommended that charges be made specific, that counsel for the suspect be allowed the right of cross-examination, and that the reasons for each expulsion be pub- licly stated.

THAT EXTRA DOLLAR!

The Union is grateful to its many supandporters who added a dollar to their usual donations in order to help us return an important item of $840 to the budget for a part-time office secretary. We hope that those who have not yet contributed to our annual budget drive will not forandget the extra dollar.

Over 200 supporters (a record numandber) have thus far answered our regular appeal for funds. Naturally, we’ll have to hear from many more before we can hope to raise the following budget, and return the missing item of $840:

Salary—Director and................ $2,100.00 Printing and Stationery............ 630.00 Rent. 330.00 Postage 2) 8h) a 220.00 Telephone and Telegraph........ 100.00 Transportation ..........-.-.---.-----and75.00 Manes 2 Ge 60.00 Miscellaneous .......................... 40.00 Publication 2.0200 35.00 Furniture and Equipment... 15.00 TOTAL $3,605.00

An average donation of $7.25 is reandquired from our members to meet our needs, but in order to attain that figure, we must receive many $50, $25, $15 and $10 contributions. who have been content to contribute the annual dues of $2.00 will now join the group that makes a monthly contribuandtion. In any event, give what you can, and give it NOW!

At the same time, you can interest some friend in the work of the Union by entering for him a year’s ee en to the “News” at 75 cents. GIVE IT NOW!

We hope that many |

APPEAL ARGUED IN CASE TESTING HAWAII'S MARTIAL LAW

The United States Circuit Court of Apandpeals in San Francisco last month heard arguments in the important case of Hans Zimmerman, United States citizen, seized by the Military in Hawaii. The United States District Judge in Hawaii refused to consider an application for a writ of habeas corpus on the ground that he was under duress, because martial law had been deandclared and he had been forbidden to act. The important issues before the court are 1, whether the Army was not required to make a return to the application for the writ explaining by what right it holds Zimandmerman: and 2, whether continued martial law in Hawaii is proper. The A.C.L.U. filed an amicus curiae brief contending that while the privilege of the writ of habeas corpus may be suspended, there may be no suspension of the writ itself.

EXCESSIVE BAIL SET TO DISCOURAGE ACCUSED FROM SEEKING AP-| POINTMENT OF COUNSEL

A. E. Hoffman, Jehovah’s Witness, was recently convicted in the U. S. District Court in San Francisco and sentenced to a term of four years in the federal prison for failure to report for induction in the armed forces. Hoffman’s claim that he was a Minandister of the Gospel and therefore entitled to deferment was rejected.

Bail in the case was originally fixed at $1,000. It was provided by another ‘‘Wit- ness.”” When the defendant requested the appointment of counsel because he was without money to hire an attorney, Judge Michael J. Roche raised the bail to $2,500, after Assistant U. 8S. Attorney Joseph Karesh stated, “If they can put up bail they can get an attorney.’ Later, the court did appoint an attorney for Hoffman, and when Mr. Karesh indicated that the ““Witandnesses” were going to provide the $2,500 bail, Judge Roche immediately raised the and bail, this time to $5,000, declaring that no one was going to make a mockery of his court.

“Excessive bail shall not be required,” says the Constitution of the United States, and the accused is entitled “‘to have the asandsistance of counsel,” if he has no money to employ an attorney. No man’s friends are required to hire an attorney for him, even if they are kind enough to provide bail. And the court and the U. 8S. Attorney’s office should not set excessive bail because a defendant exercises his constitutional right to have the court appoint counsel. The only legitiate: purpose of bail is to assure the appearance of the defendant. Appropriate protests have been entered with the Department of Justice against the part played in the matter by the U. S. Atandtorney’s office.

We are printing herewith the significant opinion of United States District Judge James Alger Fee in the case of United States against Minoru Yasui, in which it was held that the Military has no jurisdicandtion over citizens in the absence of martial law. The decision was handed down on November 16, 1942. Limitations of space require some omissions from the body of the 30-page opinion, as well as the 56 footnotes.

and.and. The President of the United States, by Execuandtive Order Number 9066, after reciting that “the sucandcessful prosecution of the war requires every posandsible protection against espionage and against saboandtage to national-defense material, national-defense premises, and national-defense utilities as defined” by... statute, authorized and directed the Secretary of War and military commanders designated by him to prescribe military areas in such locations and of such boundaries as might be desired, from which all persons might be excluded and subject to whatever restrictions might be imposed upon the right of perandsons to enter, remain in or leave, such areas. Lieuandtenant General John L. DeWitt was designated by the Secretary of War to exercise the authority granted by the Executive Order for the Western Defense Command.

GENERAL DeWITT’S ORDER

Thereafter, claiming to act pursuant to the Execuandtive Order and the authority vested in him by the Secretary of War, General DeWitt, by Public Proclaandmation No. 1, on March 2, 1942, declared certain porandtions of the Western Defense Command, because of its liability to attack or to attempted invasion and because it was subject to espionage and acts of saboandtage, a military area “requiring the adoption of miliandtary measures necessary to establish safeguards against such enemy operations.”

Certain areas were thereby designated as “Military Areas” and “Military Zones.” It was thereby anandnounced that “such persons or classes of persons as the situation may require’ would, by subsequent proclamation, be excluded from certain of these areas, and further declared that with regard to other of said areas “certain persons or classes of persons” would be permitted to enter or remain therein under certain regulations and restrictions to be subsequently prescribed. Further “Military Areas” and “Military Zones’ are designated by the Proclamation No. 2, of March 16, 1942.

Public Act 503, passed by Congress and approved by the President March 21, 1942, made it a criminal act for any person “to enter, remain in, leave or commit any act in any Military Area or Military Zone established pursuant to the Executive Order of the President by any military commander designated by the Secretary of War,” contrary to the restrictions applicable to any such area if such person knew of the existence, application, and extent, of the restricandtion.

... On March 24, 1942, Public Proclamation No. 3 was issued by General DeWitt, reciting “as a matter of military necessity the establishment of certain regulations pertaining to all enemy aliens and all persons of Japanese ancestry within said Military ‘Areas and Zones * * *.”’ This regulation established a curfew law for such enemy aliens and such perandsons of Japanese ancestry within certain of the zones above indicated.

YASUI BORN IN OREGON

Minoru Yasui, the defendant, is the son of an alien Japanese father and mother. He was indicted April 22, 1942, on the ground that he had violated the curfew provisions of this proclamation. “Not Guilty”, waived a jury and was tried by the court. The evidence showed that Yasui was born at Hood River, Oregon, on October 19, 1916. On March 28, 1942, at 11:20 P. M., Yasui walked into the police station in Portland, Oregon, within one of the designated areas. He admits this fact and that he knew it was a violation of the regulations. His contention was and is, however, that he could not be convicted therefor because he was a citizen of the United States and that the regulation is, as to him, unconstitutional and void....

As a premise, then, the existence of a war In which victory is a vital necessity to assure survival of the freedom of the individual guaranteed by the Federal Constitution, must be predicated. The conandditions and necessities of preparation for modern war had previously been recognized by this court. The areas and zones outlined in the proclamations became a theatre of operations, subjected in localiandties to attack and all threatened during this period with a full scale invasion. The danger at the time this prosecution was instituted was imminent and immediate. The difficulty of controlling members of an alien race, many of whom, although citizens, were disloyal with opportunities of sabotage and espionage, with invasion imminent, presented a prob- lem requiring for solution ability and devotion of the highest order.

PERILS TODAY COMPARE WITH OTHER TIMES It must be remembered, however, when dealing with the claims made by writers who are not charged. with the responsibility of maintaining the structure — of the fundamental law and the guarantees of the liberty of the individual, that the perils which now encompass the nation, however imminent and im- mediate, are not more dreadful than those which surrounded the people who fought the Revolution and at whose demand shortly thereafter, the ten amendments containing the very guarantees now in issue were written into the Federal Constitution; nor those perils which threatened the country in the War of 1812, when its soil was in the hands of the invader and the Capitol itself was violated; nor those perils which engulfed the belligerents in the war between the states, when each was faced with disandaffection and disloyalty in the territory in its conand

He pleaded |

trol. Yet each maintained the liberty of the indiandvidual.

In Ex Parte Milligan, supra, a citizen of the United States who had been tried, convicted and sentenced to death, by military commission for conspiracy and subversive measures against the federal government, applied for habeas corpus. He had at all times been a resident of the loyal state of Indiana, which was | not at the time under occupation by any hostile troops, although it had been previously invaded and was then threatened with invasion.

When this case came before the Supreme Court of the United States, the whole field of the interandrelation of the civil and military power was covered in the arguments of able counsel. The court in the opinion of necessity considered thoroughly and and in- tentionally the foundations of military power over civilians. It was necessary there, as here, to deandtermine whether a citizen, who is not a soldier, a prisoner of war, nor a spy in a loyal state not presandently invaded, is subject to military jurisdiction, or whether as a non-belligerent he must be tried by civil courts solely for offenses designated by Conandgress. The direct question in this case was not there involved, because trial by a military commission is not here attempted. But the opinion in all its phases is binding upon this court. It cannot be disregarded. The expressions cannot be brushed aside as dicta, except by a process of wishful rationalization.

CIVIL POWER SUPREME OVER MILITARY

The rationale of both the main and concurring opinions is that the civil power in this country is supreme. Neither directly nor military power become dominant. The Constitution, laws and treaties of the United States control. Nor is the situation changed by the incidence of war. This doctrine has been re-affirmed many times by the Supreme Court of the United States, citing the Nilligan case.

But it is urged without making a distinction beandtween power based upon military necessity and power based upon Congressional action that.in time of war the constitutional guarantees must be reandinterpreted. If this be a plea for the exercise of arbitrary power, it is not conceived that it has the support of the military authorities, and, certainly, has not the support of the decided cases. The arguandment proceeds upon the basis that the disposition of the Supreme Court now is to overlook the conandstitutional limitations when confronted with an emergency....

NO SUSPENSION OF LIBERTY IN WAR-TIME

The court speaks distinctly in the Milligan case regarding the re-interpretation of the guarantees beandand cause. of the perils of war. “It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that in time of war the commander of an armed force (if in his opinion the exigencies of the country and demand it, and of which he is to judge), has the power, within the lines of his military district, to suspend all civil rights and their remedies, and subject citizens as well as soldiers to the rule of HiS WILL; and in the exercise of his lawful authority cannot be restrained, except by his superior officer or the President of the United States.”

“If this position is sound to the extent claimed, then when war exists, foreign or domestic, and the country is subdivided into military departandments for more convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all perandsons, as he thinks right and and proper, without fixed or certain rules.”

“The statement of this proposition shows its importance; for, if true, republican government is a failure, and there is an end of. liberty regulated by law. Martial law, established on such a basis, destroys every guarantee of the Constitution, and effectually renders the “miliandtary independent of and superior to the civil power’—the attempt to do which by the King of andGreat Britain was deemed by our fathers such an offense, that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure together, the antagonism is irreconcilable; and, in the conflict, one or the other must perish.”

The question now before this court is whether a military commander has the right to legislate and ‘pass statutes defining crimes which will be enforced by the civil courts. A power to so legislate validly and to execute such laws makes the possessor thereof supreme. The Constitution vests the legislaand— tive power in Congress. It is axiomatic that so long as no form of military jurisdiction is in force over the particular locality or person, the civil law will andprevail.

THREE KINDS OF MILITARY JURISDICTION

The classical definitions of various situations where ordinary civil law does not apply is given in the concurring opinion in Ex parte Milligan, as follows:

“There are under the Constitution three kinds of military jurisdiction; one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within. states or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of states maintaining indirectly can the or laws thereof.

adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under MILIandTARY LAW, and is found in acts of Congress prescribing rules and articles of war, or otherandwise providing for the government of the naandtional forces; the second may be distinguished as MILITARY GOVERNMENT, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress; while the third may be denominated MARTIAL LAW PROPER, and is called into action by Congress, or temandporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing . peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within disandtricts or localities where ordinary law no longer adequately secures public safety and private corignts. 2 2...

The present case does not then arise under “miliandtary law,” nor can it be justified by doctrines reandlating to trial of military personnel by court martial, nor to trial of spies by military commission nor the and seizure and holding of persons by military authority. The instant case relates to the power of the military commander to issue regulations binding indiscrimiand| nately upon citizens and alien, reserve officer, spy and civilian. Such power only is tolerated in the first instance if a state of “martial law’ has been pro-. claimed by the proper authority. and in the ultimate only if the facts prove the existence of the military necessity therefor....

COMMANDER POWERLESS TO LEGISLATE |

A military commander under the Constitution is — given no power of legislation. It follows, therefore, in this case, that the regulations issued by his sole authority, even though it be established that the territory on the Pacific Coast of the United States has been invaded and is in imminent danger of inandvasion, confer upon the military commander no power to regulate the life and conduct of the ordiandnary citizen, nor make that a crime which was not made a crime by any act of Congress. The Congress of the United States is in session and consists of the elective representatives of the people. To this body, therefore, alone is committed its ordinary power of passing laws which govern the conduct of citizens, even in time of war.

It is true that martial law, when instituted, its complete and represents the arbitrary will of the commander, controlled only by consideration of strategy, tactics and policy and subject only to the orders of the President. Under martial law the commander can seize men and hold them in con-— finement without trial. He can try them before a military commission for a violation of the laws of war or his own regulations. Finally, he can legislate and bind citizens and others by rules established by him and governing their conduct in the future.

Whether declared by the President or by Congress or. by the military commander or existing on account of conditions, the only basis for martial law is miliandtary necessity.

DOCTRINE OF “PARTIAL MARTIAL LAW”

There is a pernicious doctrine known as “partial martial law,’ which was developed by an ambitious governor as a method of dictating regulations to the people of a state uncontrolled by the Constitution It constituted an expression of his arbitrary will. The long history within recent years of the use of arbitrary power in the guise of martial law by the executives of the states, sometimes upon ‘the flimsiest pretext, and. occasionally, with ‘the unandjustifiable support of the judiciary, state and federal, in subversion of the rights and personal liberty of andthe citizen, indicates that a fear that the state ofandficials might in some future time attempt further violations is at least justifiable. . These perversions of martial rule used by governandors of the states in industrial and social conflict to satisfy a personal need for uncontrolled power in given situations, wherein the civil rights of indiandviduals were swept away by legislation or fiat dicandtated by an individual, indicate that in these trying days of war, limits must be set to military authorandity exercised in the name of necessity, lest we lose the liberties for which we fight.

“But it is insisted that the safety of the counandtry in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation.” Ex parte Milligan, supra, 126.

COMPLETE SURRENDER OF LIBERTIES

The doctrine that there can be a partial martial law, unproclaimed and unregulated except by the rule of the military commander, expressed in orders or regulations proclaimed by him and enforced in the civil courts in a territory within the continental limits of the United States and at the time not ocandcupied by any foreign foe, belongs in the category of such perversions, and cannot be justified by any sound theory of civil, constitutional or military law. Its only justification lies in the doctrines of “state of siege” proclaimed by military commanders, genanderally speaking, in the governments of Europe. For a state of the United States or any portion thereof to be placed, in any essential function, or for citizens of the United States to be placed with regard to their fundamental rights, subject to the will of the comandmander alone, however well designed for their proandtection, without any of the preliminaries above sugandgested, up to the time when utter necessity requires (Continued on Page 4, Col. 2)

Let Freedom Ring

andWriter’s Project ‘‘Radicalism”’

Dismissed from the San Francisco Writer’s Project last June on charges of “radicalism,” a woman has just received an informal hearing that will lead to dismissal of the charges and reinstatement in the near future. The Union demanded the hearing after the woman denied the charges. We also appeared for her at the hearing.

Japanese Excluded From the Army The A.C.L.U. has received a formal reply

to its protest against excluding citizens of and Japanese extraction from the army. ‘‘The War Department,” says the letter signed by Major General J. A. Ulio, ‘‘does not, con- sider it practicable to accept for service with the Armed Forces, Japanese or perandsons of Japanese extraction, regardless of citizenship, status, or other factors.” Photographic Evidence |

' A couple of years ago the Immigration Service sought to deport various Indians on charges of illegal entry from Mexico. To establish the charges, the Government called certain Mexicans to testify in Calexandico, hundreds of miles from where the Hinanddoos resided. At such hearings, recent photographs of the aliens were identified by the witnesses as persons they had seen in Mexico about fifteen years before that. On such evidence, Ram Singh of Loomis, California, was ordered deported, but, last month, after intervention by the A.C.L.U., the proceedings were dismissed.

Evacuation Tests Cases

The inion brief in the Fred T. Kore -matsu Japanese evacuation test case will be filed in the Circuit Court of Appeals in San Francisco during the first week of Decemandber. The government will then have thirty days in which to file its reply brief, after which the Union will have another ten days in which to answer. Oral arguments in the case should take place early i in February. Attorney Wayne M. Collins is preparing the Union’s voluminous briefs.

The record in the Gordon Hirabayashi evacuation test case from Seattle was filed in the Circuit Court of Appeals in San Franandcisco on November 16. Seventy days are allowed for the filing of briefs, so the oral argument in this case may also be heard sometime next February.

Attack On Japanese Citizenship:

An appeal was filed in the United States Circuit Court of Appeals in San Francisco on October 31, in the case of John T. Regan vs. Cameron King. The appeal marks anandother step in the effort of the Native Sons, the American Legion, and the California Joint Immigration Committee to deprive American-born Japanese of citizenship. On July 2nd, District Judge’A. F. St. Sure held that the law was settled by the case of U.S. v. Wong Kim Ark, 169 U.S. 649, that “A person of the Japanese race is a citizen of the United States if he was born in the United States.” Attorney Wayne M. Collins filed an amicus curiae brief for the Union in the District Court. He will prepare a similar brief for filing in the Circuit Court.

Ministers Urge Release of Japanese

A dozen Methodist, Congregational and Presbyterian clergymen of San Francisco recently issued a statement advocating the speedy release of Japanese from relocation centers and compensation for the losses inandcurred by them. Among those signing the ' statement were Dr. Edgar A. Lowther, Dr. Alfred Fisk, Rev. Donald F. Gaylord, Rev. Otis L.: ‘Linn, Rev. Philip A. Solbjor and Rev. Herrick J. Lane.

No Exclusion in Carlsen Case

The Military Board which is hearing indiandvidual exclusion cases, last month informed Lorenz C. Carlsen, head of San Francisco’s United German Societies, that no action to exclude him will be taken at the present time. Carlsen’s “hearing” failed to show any pro-Axis action or sympathy on his part. Mr. Carlsen had stated publicly that he had nothing to hide and that he was just as good an American as the next person.

andon a refusal to follow that decision.

The local branch of the A.C.L.U. has reandceived a news release from the national office of the Union informing it of the adoption of a resolution by the Board of Directors establishing a new policy with reference to certain war-time cases. There was no consultation with the various branches before adoption of the resolution. The resolution is as follows:

“Recognizing that our military eneandmies are now using techniques of propaandganda which may involve an attempt to pervert the Bill of Rights to serve the enemy rather. than the people of the United States, the American Civil Liberandties Union will not participate,—except where the fundamentals of due process are denied,—in cases where, after inandvestigation, there are grounds for a beandlief that the defendant is cooperating with or acting on behalf of the enemy, even though the particular charge against the defendant might otherwise be. appropriate for intervention by the Union. ,

“To reach a conclusion on the question whether a particular defendant is coandoperating with or acting on behalf of the enemy, the Union will consider such matters as past activities and associaandtions, sources of financial support, relaandtions with enemy agents, the particular words and conduct involved, and all other relevant factors for informed

ith The Enemy

judgement. The Union will continue to defend the rights of all others protected by the Bill of Rights.”

Roger N. Baldwin, director of the Union, stated that the policy would be applied to all war-time cases, adding that “it is not always an easy matter to distinguish who are persons co-operating with or acting on behalf of the enemy. It is often difficult to separate native fascists operating on their own from those inspired by Axis sources. — “Hiven in cases involving Axis sympathizanders the Union will challenge a prosecution, a Post Office prohibition, a denaturalizaandtion case, or a military removal if the fund- amentals of due process are not observed. Those fundamentals are set forth in the Bill of Rights, which the Union will maintain in war-time as in peace for everybody without distinction. Even the German saboteurs were accorded due process by decision of the Supreme Court, and certainly all lesser enemy agents are entitled to our democra-and tic guarantees. The Union’s intervention in | such cases, however, is confined to points of law. It will not represent the defendants.

“It is merely a common-sense position to restrict in war-time within the United States the freedom of speech and publicaand. tion of enemy agents or sympathizers. So long as the government confines its proandceedings to them, respecting the fundaandmentals of due process, the Union. a not. intervene.”

Wesi Va. Appeals FlagandSalute Decision To U.S. Supreme Court

The State of West Virginia has decided to appeal to the U. 8. Supreme Court the recent decision of a three-judge federal disandtrict court voiding the state’s compulsory flag-salute law for children having consciandandentious scruples.

The Supreme Court will therefore be faced with reconsidering its decision in the Gobitis case upholding the flag-salute 8 to 1, since the lower court’s action was. based Of the seven judges now members of the Supreme Court who participated in that decision, three have since reversed their stand. Inand| cluding Chief Justice Stone who dissented in the Gobitis decision, four of the eight judges now sitting are on record in opposi- ‘tion to the compulsory flag-salute.

The West Virginia court had declared that ‘‘the salute of the flag is an expression of the homage of the soul. To force it on one who has conscientious scruples against giving it is petty tyranny unworthy of the spirit of the Republic and forbidden, we think, by fundamental law. We are clearly of the opinion that the regulation of the Board requiring that school children salute the flag is void in so far as it applies to children having conscientious scruples ‘against giving the salute.”

The West Virginia case was brought by counsel for Jehovah’s Witnesses on behalf of three children expelled from school. The Union expects to file a brief and participate in argument in the Supreme Court.

JUSTICE DEP’T. OPENS WAY FOR SETTLING FLAG-SALUTE ISSUE

Possible settlement of the flag-saluting issue involving children of Jehovah’s Wit- nesses in public schools is foreseen as a reandsult of a memorandum issued recently by the Civil Rights Section of the Justice Deandpartment nullifying local ordinances which compel the gesture of salute and recitation of the pledge of allegiance.

Addressed to U. S. Attorneys, the memoandrandum calls attention to a law passed by Congress last June dealing with respect due to the flag, providing that “civilians will -always show respect to the flag when the pledge is given by merely standing at atten- tion, men removing their headdress.”’ Since Jehovah’s Witnesses have indicated their o willingness to comply with this — require; 3 ment, cause for controversy will be elimin- ated provided local authorities also abide by this law.

The Justice Department’s statement of policy says that the Congressional Act “lays down a federal standard with regard to a matter which is primarily a concern of the national government, and there is thereandfore a very real question whether any local regulations, ordinances, or statutes preandscribing a different measure of respect due to the flag can be enforced; for example, regulations of local school boards such as the Supreme Court upheld in Minersville v. Gobitis. es

FLAG-SALUTE DISCRETIONARY, LOS ANGELES COUNSEL SAYS

Application of the flag-salute law is disand| | cretionary, not compulsory, Beach Vesey, counsel for Los Angeles County, California, last month told the Montebello School Board, then considering expulsion of six children of Jehovan’s Witnesses for refusal to salute the flag.

This opinion, written after discussion with A. L. Wirin, counsel for the Southern Cali- fornia Branch of the A.C.L.U., said that “under the present decisions, it is within the discretion of the board to excuse cerand| tain pupils from the salute or to omit any pledge or salute at all.”

Vesey pointed to the dissent of Chief Justice Stone in the Gobitis case, and the more recent admission of error by three Supreme Court justices who had upheld the compulsory flag salute in the Gobitis deandcision. He also referred to the decision of a three-judge federal court in West Virginia last October voiding the compulsory flagandsalute for children with religious scruples.

Education Between Two Worlds

Dr. Alexander Meiklejohn, Vice-Chairman of the northern California branch of the andA.C.L.U., has just written a book, Educaandtion Between Two Worlds, published by Harper and Brothers. 303 pages. $3.00. The book is given an enthusiastic review in the November 9th issue of the New Repubandlic.

Page 4

American Civil Liberties Union-News

Published monthly at 216 Pine Street, San Franandcisco, ‘Calif., by the Northern California Branch of The American Civil Liberties Union. Phone: EXbrook 1816 ERNEST BESIG Editor

Entered as second-class matter, July 31, 1941, at the Post Office at San Francisco, California, under the Act of March 38, 1879. Subscription Rates—Seventy-five Cents a Year. Ten Cents per Copy.

UNION SCORES $25,000 BAIL FOR C. O.

‘The action of Judge (deo Matthew T. Abruzzo last month in the federal district court at Brooklyn, N. Y. in setting “‘prohibitive bail” at $25,000 for Julius Eichel, forty-six-year old conscientious objector, was scored by the American Civil Liberties Union as a “‘nlain violation of the constitutional proviandsion.” Arthur Garfield Hays, general counandsel of the Union said that “‘bail is intended to get a man out of jail not put him in,” and announced that efforts were being made to secure a reduction of bail.

EKichel, the only man in the 45 to 64 age group to be brought to trial for refusal to register for military service has been out on bond of $2,500 since shortly after his arrest last April. Bail was originally set at $25,000 by Judge Abruzzo and later reduced. Inandability to meet the present demand for $25,000 makes Hichel a prisoner pending

trial on December 2.

Cases. of all other objectors in the 45 to 64 bracket refusing to register have been dismissed by order of the Justice Departandment. The Selective Service boards have accepted registration of these men by U.S. marshals as adequate. Hichel served two years in military prison as an objector in the first war.

SUPREME COURT DENIES REVIEW ON “WITNESS” LITERATURE SALES

The U. S. Supreme Court refused last month to review convictions of three memandbers of Jehovah’s Witnesses for violation of local ordinances in Comanche, Floresville, and Paris, Texas, either licensing, taxing or prohibiting the sale of religious literature on the streets or house to house. Review was sought on the ground that the ordiandnances violated freedom of speech, press and religion.

In permitting :absolute prohibition of sales, the court went a step beyond its 5 to A decision of last June, also involving Jehoandvah’s Witnesses, approving license taxes for sale of religious literature. Petition for a rehearing on the earlier decision is still pending, with the ACLU represented as friend of the court. In its brief, the Union said that ‘‘the seriousness of the restriction on freedom of the press and of religion which will result if the decision stands, the fact that the decision within the court was so close, justify, we believe, a further conandsideration of the problem.’”

Also awaiting the Supreme Court’s deandcision is an action testing whether a Disandtrict of Columbia law requiring a license for distribution of literature on the streets should be applied to Jehovah’s Witnesses.

UNION SUPPORTS APPEAL IN MINNEandAPOLIS SEDITION CASE

The American Civil Liberties Union last month joined in the appeal of eighteen members of the Socialist Workers Party, followers of Leon Trotzky, before the U.S. Circuit Court of Appeals in St. Louis from their conviction on charges of advocating violent overthrow of the government and inciting military disaffection. —

The case on the facts for the ‘defense was presented by Albert Goldman, one of those convicted. Osmond K. Fraenkel, counsel for the Union, challenged the constitutionandality of the Smith Law of 1940 under which | the defendants were convicted charging it violated freedom of speech. He argued that even if this statute were upheld, it could not be applied to utterances or publications in the absence of overt acts, or of a “‘clear and present danger.”

Japanese Test Case

ling

Limits Gen. Dewitt’s Power

(Continued from Page 2, Col. 3)

the abolition of all civil rule for the preservation of the government, would seem to be a complete surandrender of the guarantees of individual liberties conandfirmed in the Constitution of the United States.

The confusion in the authorities seems to arise in a failure to differentiate between a case where marandtial law is properly declared in CIVIL DISTURBandANCES and a case where the military is called upon to aid the civil power. In the latter case no special attributes should be ascribed either to the soldier or the commander. Ordinary civil law is enforced by a greater power.

“Thus the war power of the Federal Governandment is not created by the emergency of war, but it is a power given to meet that emergency. It is the power to wage war successfully and thus it permits the harnessing of the entire energies of the people in a supreme co-operative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties.” Home Building and Loan Assn. vs. Blaisdell, supra, 426.

OCCASIONS FOR MARTIAL RULE

The replacement of the statutes of Congress, the courts and civil authority in this area can then be effected only by “martial law proper,’ under the definitions given. What then is the test? The court in the Milligan case says:

“It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign inandvasion or civil war, the courts are actually closed, and it is impossible to administer crimandinal justice according to law, THEN, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overandthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; * * *, And so in the case of a foreign invasion, martial rule may become.a necessity in one state, when, in another, it would be ‘mere lawless violence’.” Ex parte Milligan, supra, 127.

The concurring opinion did not controvert this holding. The concurring judges gave support to this doctrine, but held that Congress if the necessity were legislatively found, could declare martial law, as could the President under given circumstances. It was vital to find whether “MARTIAL LAW PROPandER” prevailed in Indiana for the determination of the case. If it prevailed, whether declared by Conandgress or the President, or in existence because of military necessity, a citizen could have been tried by military commission, although he was neither prisoner of war, spy, a resident of enemy country nor attached to the military forces. Otherwise, he could not. The recital by the court of the facts shows that the peril was extreme, but held that martial law was not in effect. ...

NO MARTIAL LAW WITHOUT MILITARY NECESSITY

But it is too clear for debate that martial law does not come into existence under constitutional ' government until utter necessity compels the inandvestment of one man with the power of life and death over citizen and soldier alike in a given area. It is the law of self-defense among nations. Like self-defense, it is a use of elemental force sanctioned by common law, initiated solely by stark necessity and vanishing when the necessity no longer exists. If military necessity does not exist, neither the dec- laration of war nor the proclamation of martial law can justify acts contrary to ordinary law. On the other hand, where there is no declaration of martial law by Congress or the President or by the General in this area, and when there has not even been a suspension of the writ of habeas corpus, there is a strong implication that in the judgment of the poandlitical authorities no necessity justifying such action exists.

While a war is in progress, the question of whether military necessity requires the closing of the courts and the abrogation of civil authority for the time being and in a certain area, is one for the political or executive departments of the government. There should be a clear line of demarcation drawn by the political agencies between government by fiat, and by law.

NO NECESSITY WHERE COURTS ARE OPEN

The existence of military necessity is justiciable under a particular set of circumstances. In the event the military commander has taken measures under the guise of martial law when the military necessiandties did not actually require, he has been held civilly liable after the war is finished. But it is obvious duranding the clash of arms the evidence of the military necessities cannot be adduced in a civil court. There- fore, such a tribunal should not be called at that time to declare whether the necessity exists. When the Congress in session has not declared martial law and the President has not recognized the existence of martial law by executive order closing the courts and even the military commander has not proclaimed martial law is in effect, a court cannot take the reandsponsibility in view of the clear declaration of the Supreme Court of the United States that a martial law is not in effect unless the courts are closed. While it is true that neither a declaration of the President, nor of Congress, nor of the military comandmander would be binding upon a court eventually, if the necessity did not exist, until some political or military authority has faith enough in the position to proclaim a state of martial law, a court which is in fact open, should not find the existence of necesandsity as a fact.

ORDER NOT ENFORCEABLE BY COURT

All this points to the vital inconsistency here deandveloped between the action taken by the civil authoriandties in a federal court bound by and acting under the guarantees of the Constitution of the United States and its amendments, and the claim that a military necessity has arisen so vital that its exigencies deandmand that citizens of the United States be confined to their places of lodging at hours dictated by a military commander. If such an emergency exist, and it may well be that it does, the Congress of the United States or the Executive, in the months since Pearl Harbor, could have declared martial law or at least suspended the writ of habeas corpus in view of the situation. If the emergency exist, the military commander may be justified in’ seizing the body of Yasui and removing him from the military areas or zones. Of a certainty, if the military commander can allow a civil court to remain open to try violaandtions of his orders, without support by force, military necessity cannot be so imperative that the funda- mental safeguards must be abandoned. So long as the courts of the United States are open, these tribandunals are bound by Constitution and treaties of the United States and legislation of Congress. The procandlamations or regulations of a military commander cannot be enforced by such tribunals.

But it is contended that there was an adoption of the proclamations of the military commander beandcause the act of Congress passed three days earlier prescribed penalties for acts done in violation of the regulations issued with reference to certain areas or zones. uninvaded make acts of citizens criminal simply because such acts were in violation of orders to be issued in the future by a military commander. Conandgress could have declared martial law and thereupon the courts might have become adjuncts or agencies of the General commanding. Under these circumandstances he might have had the power to legislate ‘by regulation and create classes of citizens.

BLANKET TREATMENT UNJUSTIFIED

There are valid reasons for control of citizens of Japanese ancestry, but the test is color and race. An equally valid foundation can be found for control of persons of Italian, German and Irish ancestry. A real basis in necessity might be found in the impoandsition of such regulations upon the eastern frontier after the landing of persons of German ancestry who were harbored in this country. But the history of this country contains too many examples of loyalty of persons of foreign extraction to justify any blanket treatment. The precedent, if valid, can be made to justify exile or detention of any citizen when a miliandtary commander desires in a loyal state not under threat. If the military necessity existed and martial law was at in effect, Aue eration might be pleaded. . \

CLASSIFICATION BASED ON RACE IS INVALID

This court, while not operating as an adjunct of a military commander, must apply ordinary law and protect the rights of a citizen in a criminal case. If Congress attempted to classify citizens based upon color or race and to apply criminal penalties for a violation of regulations, founded upon that distincandtion, the action is insofar void.’ The power of Congress, however, during time of war over aliens of a country which is hostile to the United States is almost plenary, as is that of the President by a series of acts dating to the foundation of the Union. While in ordinary times such persons “are entitled to the “equal protection of the laws,” when their country is at war with the United States, Congress or the President may intern, take into custody, restrain and control all enemy aliens within the territorial limits of the United States, and neither are restrained by any constitutional guaranandtees from such action. While the orders of Generai DeWitt, therefore, were void as respects citizens, unquestionably from the history of the proclamations, Congress would be well on notice that the General might intend to establish regulations relating to enemy aliens within the areas designated by the previous proclamations. The regulations, which make these acts crimes, by adoption thereof by act of Congress are thus valid with respect to aliens.

YASUI AN ENEMY ALIEN

The only question now for the court to determine and is as to whether Yasui, the defendant, is a citizen or an enemy alien.

(The court then proceeded to find that Yasui, upon attaining his majority, had elected to become a citiandzen of Japan, as evidenced by his registration with the State Department as a propaganda agent for Japan. Being an enemy alien, he was lawfully sub. ject to curfew regulations.)

COMPULSORY CHAPEL and

General Stephen H. Sherrill of Camp Kohler, Sacramento, recently informed a representative of the A.C.L.U. that, conandtrary to press reports, there is no compul- sory chapel at the camp. General Sherrill explained that trainees attend an assembly the first Sunday at camp. After the genanderal speaks, the meeting is turned over to the Senior Chaplain, who tells about the various devotional services, following which there is a chapel service, attendance at which is optional.

Congress itself could not in loyal territory’