“Martial Law” Under President Franklin D. Roosevelt
Indefinite Detentions

As to how extensively the perverse practice of indefinite detention might be applied in the future, the background of Korematsu v. U.S. provides a chilling possibility. On 19 February 1942, President Franklin D. Roosevelt purported to authorize the Secretary of War “to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine” within the United States.

Executive Order No. 9066 (19 February 1942), 7 Federal Register 1407, 1407 (25 February 1942) (emphasis supplied).

Also see “Martial Law” in America’s Founding Era • “Martial Law” Under President Lincoln • “Martial Law” in the United States Today •  “Standing Armies” • “Emergency Powers” • Current “Homeland Security”: “Top Down” Para-military Structure • “Gun Control • Militia: Immune From Contemporary “Gun Control


“Martial Law” Under President Franklin D. Roosevelt

No vivid imagination is necessary to foresee how some future rogue President and his lackeys in Congress, using President Franklin Roosevelt’s  Executive Order No. 9066, of 19 February 1942 as their model, could substitute for “the war [against Germany and Japan]” with “the war on terrorism”. In 1944, the Supreme Court in Korematsu v. U.S. upheld the order for exclusion, on the ground that “exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country”, and the “judgment that exclusion of the whole group was * * * a military imperative”. (footnote1) Some forty-six years after Roosevelt’s Executive Order for the indefinite detentions of Japanese Americans on American soil, Congress recognized the crime. Thus proving the prescience of Justice Robert Jackson’s ominous warning when the Supreme Court upheld the internment of innocent Japanese-Americans, that

“once a judicial opinion rationalizes [a governmental act] to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an [act], the Court * * * has validated the principle. * * * The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds the principle more deeply in our law and thinking and expands it to new purposes. * * * There it has a generative power of its own, and all that it creates will be in its own image.” (footnote 2)

  • On 19 February 1942, President Franklin D. Roosevelt purported to authorize the Secretary of War ‘to prescribe military areas’ for the internment of Japanese-Americans.

    On 19 February 1942, President Franklin D. Roosevelt purported to authorize the Secretary of War “to prescribe military areas”:

    “Whereas 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 ***:

    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 restriction 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.” (footnote 1)

    Footnotes:

    1.) Executive Order No. 9066 (19 February 1942), 7 Federal Register 1407, 1407 (25 February 1942).

  • Then on 18 March 1942, Roosevelt established ‘the War Relocation Authority’ in order to ‘provide for the removal from designated areas of persons whose removal is necessary in the interests of national security’

    Then, on 18 March 1942, “in order to provide for the removal from designated areas of persons whose removal is necessary in the interests of national security,” Roosevelt “established * * * the War Relocation Authority” and “directed”

    “* * * [t]he Director of the War Relocation Authority * * * to formulate and effectuate a program for the removal * * * of the persons * * * designated * * * and for their relocation, maintenance, and supervision.

    * * * In effectuating such program the Director shall have authority to—

    (a) Accomplish all necessary evacuation * * * , provide for the relocation of such persons in appropriate places, provide for their needs in such manner as may be appropriate, and supervise their activities.
    (b) Provide, insofar as feasible and desirable, for the employment of such persons at useful work * * * .
    (c) Secure the cooperation, assistance, or services of any governmental agency. (footnote 1)

    Footnotes:

    1.) Executive Order No. 9102 (18 March 1942), 7 Federal Register 2165, 2165 (20 March 1942).

  • Shortly thereafter, Congress provided for fines and imprisonment for Japanese-Americans arbitrarily considered to be a threat to ‘national security’.

    Shortly after Roosevelt established the “War Relocation Authority” Congress provided

    “[t]hat whoever shall enter, remain in, leave or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, * * * contrary to the restrictions applicable to any such area or zone * * * shall, if it appears that he knew or should have known of the existence and extent of the restrictions or other and that his act was in violation thereof, be guilty of a misdemeanor and * * * liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense.” (footnote 1)

    Footnotes:

    1.) AN ACT To provide a penalty for violation of restrictions or orders with respect to persons entering, remaining in, leaving, or committing any act in military areas or zones, Act of 21 March 1942, CHAPTER 191, 56 Stat. 173, 173.

  • In 1944 the Supreme Court in Korematsu v. United States upheld FDR’s Executive Order for exclusion and indefinite detentions of Japanese-Americans.

    In 1944, the Supreme Court in Korematsu v. United States upheld the order for exclusion, on the ground that “exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country”, and the “judgment that exclusion of the whole group was * * * a military imperative”. (footnote 1) In a companion case, Endo, the Court observed that “[n]either the Act [of 21 March 1942] nor the [Executive O]rders [Numbers 9066 and 9102] use the language of detention” in so many words; but that, because

    “the Act and the orders are silent on detention does not, of course, mean that any power to detain is lacking. Some such power might indeed be necessary to the successful operation of the evacuation program. * * * [A]ny such implied power must be narrowly confined to the precise purpose of the evacuation program.” (footnote 2)

    Footnotes:

    1.) Korematsu v. United States, 323 U.S. 214, 218-219 (1944) (Black, J., for the Court).

    2.) Ex parte Endo, 323 U.S. 283, 300, 301-302 (1944) (Douglas, J., for the Court)

  • Some forty-six years after Roosevelt’s Executive Order for the indefinite detentions of Japanese Americans on American soil Congress recognized the crime.

    Some forty-six years after Roosevelt’s Executive Order Executive Order No. 9066, for the indefinite detentions of Japanese Americans on American soil, Congress finally

    “recognize[d] that * * * a grave injustice was done to both citizens and permanent resident aliens of Japanese ancestry by the evacuation, relocation, and internment of civilians during World War II. * * * [T]hese actions were carried out without adequate security reasons and without any acts of espionage or sabotage documented * * * , and were motivated largely by racial prejudice, wartime hysteria, and a failure of public leadership.” (footnote 1)

    Footnotes:

    1.) An Act To implement recommendations of the Commission on Wartime Relocation and Internment of Citizens, Act of 10 August 1988, Pub. L. 100-383, § 2(a), 102 Stat. 903, 903-904.

  • Detention of civilians under ‘the law of war’ falls within ‘martial law’ which as William Blackstone observed was ‘in truth and reality no law’.

    America’s Founding Fathers’ preeminent legal mentor was William Blackstone. And inasmuch as “[a]t the time of the adoption of the Federal Constitution [Sir William Blackstone’s Commentaries on the Laws of England] had been published about twenty years, and * * * more copies of the work had been sold in this country than in England; so that undoubtedly, the framers of the Constitution were familiar with it”(footnote 1) and considered it “the preeminent authority on English law”(footnote 2) every legally literate American was also aware of the general rule for statutory construction which Blackstone taught. Detention under “the law of war” falls within “martial law” as Blackstone described:

    “martial law, which is built upon no settled principles, but is entirely arbitrary in it’s decisions is * * * in truth and reality no law, but something indulged, rather than allowed as a law: the necessity of order and discipline in an army is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the * * * courts are open for all persons to receive justice according to the laws of the land.” (footnote 3)

    Footnotes:

    1.) Schick v. United States, 195 U.S. 65, 69 (1904).

    2.) Alden v. Maine, 527 U.S. 706, 715 (1999).

    3.) Sir William Blackstone, Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes & Appendix, 1771-1773, Volume 1, at 412. Accord, Ex parte Milligan, 71 U.S. (4 Wallace) 2 (1866).

  • Justice Joseph Story had presciently warned of the dangers of large military establishments in times of peace in his ‘Commentaries on the Constitution of the United States’.

    Justice Joseph Story pointed out in the early 1800s that, “large military establishments and standing armies in time of peace” afford

    “facile means * * * to ambitious and unprincipled rulers to subvert the government or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” (footnote 1)

    Footnotes:

    1.) Justice Joseph Story, Commentaries on the Constitution of the United States (Boston, Massachusetts: Little Brown and Company, Fifth Edition, 1891),Volume 2, § 1897, at 646 (footnote omitted).

In their review of the Nazis’ “PURGE OF POLITICAL OPPONENTS AND TERRORIZATION”, the prosecutors at Nuremberg charged (and proved) that “[w]ithout judicial process, the Nazi conspirators imprisoned, held in protective custody and sent to concentration camps opponents and suspected opponents” and “authorized the Gestapo to arrest and detain without recourse to any legal proceeding”. (footnote 3) “‘[T]he fear of such camps was a very effective brake on any possible opposition.’” (footnote 4) Those who will not learn from this history where the contemporary reintroduction of indefinite detention is leading America will be condemned to relive the lesson to its bitter end. (footnote 5)

  • Footnotes

    1.) Korematsu v. United States, 323 U.S. 214, 218-219 (1944) (Black, J., for the Court).

    2.) Korematsu v. United States, 323 U.S. 214, 246 (1944) (dissenting opinion).

    3.) Office of United States Chief of Counsel For Prosecution of Axis Criminality, NAZI CONSPIRACY AND AGGRESSION, ante note 3428, Volume I, at 245 (emphasis in the original).

    4.) Office of United States Chief of Counsel For Prosecution of Axis Criminality, NAZI CONSPIRACY AND AGGRESSION, ante note 3428, Volume I, at 246, quoting from Affidavit of Raymond H. Geist in id., Volume IV, at 288 (Document 1759-PS).

    5.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1585-1586.