Sunday, February 19, 2006

Wartime Records of Past Presidents Were Far From Spotless

Lincoln Suspended Habeas Corpus, Teddy Roosevelt Crushed Filipinos, Wilson Whipped Up Anti-German Prejudice and FDR Herded Japanese-Americans into Detention Camps

By Skeeter Sanders

George W. Bush's highly controversial program of warrantless electronic eavesdropping of telephone and Internet communications between American citizens and foreign nationals as part of his "war on terror" is by no means the only instance of a president violating the Constitution -- and the rights it guarantees to all Americans -- during wartime.

At least four presidents -- Abraham Lincoln (whose birthday is being honored on this Presidents' Day holiday weekend), Theodore Roosevelt, Woodrow Wilson and Franklin Delano Roosevelt -- also committed violations of the Constitution and of human rights so egregious that if today's standards were applied in their time, they would all have been impeached.

FDR probably would also have been charged under today's standards with a war crime for herding thousands of Japanese-Americans into detention camps during World War II. And there are some who argue vehemently that Roosevelt's successor, Harry S. Truman, committed a war crime for nuclear-bombing the Japanese cities of Hiroshima and Nagasaki.

Indeed, a thorough look at the historical record -- much of which is not included in the American history textbooks that our children read and study in school -- finds that these four presidents would not be the towering, larger-than-life national heroes most Americans revere today if the American public back then knew just how far these presidents strayed away from upholding the Constitution every president is bound by his oath of office to "preserve, protect and defend."

But America and its people was a far different country back then from what it is now. If it were possible for Americans of the post-World War II Baby Boom generation -- including myself -- to travel back in time just to the America of their childhood years of 1946 to 1964, it would not necessarily be a pleasant journey down memory lane. For many, it would be literally re-living the darker side of American society, culture and politics that they rebelled against in the late 1960s and early 1970s.

Travel much further back in time -- to Lincoln's era or to TR's or to Wilson's or to FDR's -- and you'd swear that you'd landed on an alien planet. That's how different the America of way back when was from the America of today.

Lincoln Was No Choirboy -- But Civil War May Have Left Him No Choice

As a commander in chief during the Civil War, President Lincoln took a number of measures that were at odds with the Constitution and often also at odds with the ideas of his own military commanders. But the secession of the southern states into the Confederacy -- and the war that soon followed -- may have left Lincoln with no other choice.

First elected in 1860, Lincoln was the nation's first president of the Republican Party, which was founded just three years earlier at Exeter, New Hampshire as an anti-slavery, pro-human rights party. The Democrats in Lincoln's time who controlled Congress accused him of being a tyrant because he violated the Constitution.

It's almost impossible to imagine today that America's two major political parties pursued ideologies in Lincoln's time that were 180 degrees the opposite of their ideologies today. But, in fact, in Lincoln's era, it was the GOP that was the northern-dominated liberal party, championing the end of slavery and the advancement of civil and human rights, while the Democrats were the southern-dominated conservative party, determined to preserve slavery and opposed to federal interference in "states' rights." The two parties would not undergo their historic ideological role reversal until after World War II.

As the Civil War broke out -- literally at the very start of Lincoln's first term -- a group of so-called "Peace Democrats," most of them Southerners, proposed a peaceful resolution by offering a truce with the South and forming a constitutional convention to amend the Constitution to protect states' rights. The proposal was flatly rejected by the unionists of the North and not taken seriously by the secessionists of the South.

However, the Peace Democrats -- denounced by their enemies as "copperheads" -- publicly criticized Lincoln's belief that violating the Constitution was required to save it as a whole (A belief that would analogously be employed a century later by U.S. troops in the Vietnam War).

With Congress out of session between Lincoln's inauguration in March 1861 and July of that year -- and crippled by the withdrawal of its southern members to the Confederacy -- Lincoln assumed all powers not delegated in the Constitution, including the power to suspend habeas corpus, a right guaranteed by the Fifth Amendment. Lincoln had already suspended civil law in the western territories where resistance to the North's military power was considered dangerous.

The Fifth Amendment says that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger [emphasis added]; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

In 1862, when the "copperhead" Democrats began criticizing him, Lincoln retaliated by suspending habeas corpus throughout the nation and had many Democrats arrested under military authority because he felt that state courts in the Northwest would not convict war protesters such as the "copperheads." He proclaimed that all persons who discouraged enlistments or engaged in disloyal practices would come under martial law.

By today's standards, that would definitely be considered a dictatorial act, committed with brazen political malice aforethought -- and making a mockery of Lincoln's Gettysburg Address, delivered on November 19, 1863, in which he said that "This nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth."

Among the 13,000 people arrested under martial law was a pro-Confederate Marylander, John Merryman. As soon as he learned of Merryman's arrest, Supreme Court Chief Justice Roger Taney issued a writ of habeas corpus, commanding the Army to bring Merryman before him. The Army refused to comply. Taney then ruled Lincoln's suspension of habeas corpus unconstitutional because the writ could not be suspended without an act of Congress.

It would not have mattered if Congress had acted or not under the circumstances, given that the defection of the Southern senators and representatives to the Confederacy effectively rendered Congress impotent until after the war was over. As it turned out, Lincoln and the Army ignored Taney's ruling, with Lincoln arguing the "time of war" exception in the Fifth Amendment trumped Taney's writ.

It was not until 1866, a year after the war ended, when the Supreme Court finally restored habeas corpus in the case of Ex-parte Milligan, ruling that military trials in areas where the civil courts were capable of functioning were unconstitutional. Congress bolstered the court's ruling eight years later with the passage of the Posse Comitatus Act, which bars the military from engaging in domestic law enforcement reserved exclusively to civilian government agencies.

T.R.'s Ruthless Pursuit of 'Manifest Destiny' Enraged Filipinos

In the 15 years following the end of the Civil War in 1865, the U.S. had neglected its navy, which ranked twelfth in the world by 1880. Although the U.S. at that time had no overseas colonies to protect, business and government leaders realized that a strong navy was essential to defend trade and growing international interests.

Beginning in 1881, Congress supported a program to modernize the Navy, replacing its century-old wooden sail ships with new vessels with steel hulls, steam engines, and large, rifled guns. At first, the ships still used sails as a backup to steam power. But by the 1890s, the Navy had converted to all-steel-and-steam, and ranked among the top five navies in the world.

On February 15, 1898, a mysterious explosion sank the battleship USS Maine in Havana Harbor, triggering a war between the U.S. and Spain. America went to war against Spain in 1898 to free Cuba from Spanish domination. That's what American history textbooks say.

But what the textbooks don't say is that the Spanish-American War also provided the United States an opportunity to seize overseas possessions and begin building an American colonial empire of its own to rival Great Britain's -- although the U.S. never called its overseas possessions "colonies."

After ousting Spain from Cuba, the United States seized Puerto Rico (which remains a U.S. "commonwealth" to this day) and subsequently annexed the Philippines, Samoa, Guam, and Wake Island, followed by Hawaii (which is now our 50th state).

The Maine had come to Cuba to protect American citizens while Cuban revolutionaries, led by Jose Marti, were fighting to win independence from Spain. The administration of President William McKinley supported Marti's cause, and after the Maine exploded, the U.S. demanded that Spain give Cuba its freedom.

Instead, Spain declared war on the U.S. and America quickly followed suit, moving Commodore George Dewey into position in Manila Bay in the Philippines and Commodore Winfield Scott Schley into Santiago Bay in Cuba.

War fever was fanned by the American media, which at that time consisted entirely of newspapers -- the lion's share of them owned by the publishing empires of William Randolph Hearst and Joseph Pulitzer.

Although the McKinley administration claimed it had no colonial designs on Cuba, both Hearst and Pulitzer believed the war would be an opportunity to seize other overseas possessions and begin building an American colonial empire. Their newspapers printed maps to help Americans follow the war. The United States now entered an era of overseas expansion.

It was during the Spanish-American War that President McKinley was assassinated in May 1901 -- barely two months after he was sworn in to his second term -- and Vice President Theodore Roosevelt took over as president.

The United States relied greatly on assistance from Filipino revolutionaries led by Emilio Aguinaldo, who already controlled much of the countryside and had proclaimed a Philippine republic. American troops did not arrive in large numbers there until July 1901. Roosevelt negotiated Spain's surrender of Manila in August, as the war ended.

But instead of liberating the Philippines from Spanish rule and letting it become an independent nation, Roosevelt -- who, like Hearst and Pulitzer, was a firm believer in the idea that it was the "manifest destiny" of the United States to build an empire "from sea to shining sea" -- chose to annex the islands.

Many Americans strongly opposed what they saw as a new trend of imperialism, as did Aguinaldo, who quickly turned from fighting Spain to fighting the U.S. in what would become the Filipino-American War -- one that is omitted from most American history textbooks.

Defeating Aguinaldo's guerrillas took much longer than defeating the Spanish. Roosevelt combined tactics of pacification and social improvement with brutal military strikes. Aguinaldo was finally captured by U.S. troops in December 1901 and Roosevelt officially declared an end to the conflict in a New Year's Day 1902 speech.

But the war would eventually outlive both Roosevelt's presidency and that of his successor, William Howard Taft. It did not end until the second year of Woodrow Wilson's first term, in 1915. Wilson was anxious to bring the Filipino-American War to an end because he had much a more serious foreign crisis to deal with: World War I.

Wilson Whipped Up a Wave of World War I Anti-German Prejudice

Wilson had hoped not to spend too much presidential time on foreign affairs. When Europe plunged into war in 1914, Wilson, who like many Americans, believed the U.S. should stay out of it, saw America's role as that of peace broker. But the sinking of the American passenger liner Lusitania by a German submarine in 1916 -- followed by similar attacks on U.S. merchant vessels -- put an end to Wilson's hopes.

Wilson demanded an apology from Germany and stayed his neutral course as long as possible, even running for re-election in 1916 under the campaign slogan, "He Kept Us Out of War." But Germany's unrestricted submarine warfare quickly antagonized Congress, the press and the public as "an intolerable affront to America's dignity and honor," as the Hearst Newspapers editorialized.

The final straw came in January 1917, when British intelligence intercepted the "Zimmermann telegram," a secret German communication to Mexico promising the return of U.S. territory -- presumably Texas, Arizona, New Mexico, Nevada and California -- to Mexico in return for supporting the German cause. On April 2, 1917 -- less than one month after his second inauguration -- Wilson finally asked Congress for a formal declaration of war against Germany.

But Wilson faced a daunting task: how to mobilize an America unprepared for war and which had re-elected him only five months earlier on his promise to keep the country out of it. The government could ask for volunteers and institute a draft to build up the army. But convincing Americans to support the war and feel the will to fight was more difficult. The war effort required propaganda.

Wilson launched the Committee for Public Information, which employed a legion of artists and the budding Hollywood film industry to churn out pamphlets, movies and posters depicting Germans as "The Savage Huns" -- comparing Kaiser Wilhelm II's armies with those of Ghengis Khan's centuries earlier.

James Montgomery Flagg drew his now-classic recruitment poster of Uncle Sam pointing at the viewer, saying,"I Want YOU -- to join the U.S. Army." Anything German became suspect, be it a German surname; foods with German names such as frankfurters, bratwurst, hamburgers and sauerkraut; or even the classical music -- staples on many U.S. public radio stations today -- of German composers Bach, Beethoven, Mozart and Wagner.

Discrimination against Americans of German ancestry ran rampant throughout the country. German-Americans were barred from serving in the Army. Their children were constantly subjected to anti-German slurs in school -- "kraut" being the most vicious -- as well as violence.

New York City even banned the annual Steuben Day Parade -- which honored the general from Germany's East Prussia region who helped build America's Revolutionary War army against the British -- for the duration of World War I (Ironically, the parade was allowed to continue throughout World War II).

As 1917 came to a close, the European Allies, their forces depleted, faced a German offensive designed to win the war before American troops could arrive. On the eastern front, Russia compounded the problem. An ally under Czar Nicholas II, Imperial Russia disintegrated in revolution. Its new Bolshevik government sued for peace with Germany.

Even worse for the Allies, the Bolshevik leader, Vladimir Lenin, made public Nicholas' secret treaties: agreements on how Germany's overseas possessions -- particularly its African colonies of Cameroon and present-day Namibia -- were to be divided up after the war. To many, it was evidence that the war was not about "making the world safe for democracy," but rather about an expansion of the Allied countries' imperial ambitions.

(On the other hand, had Germany not been forced to give up its African colonies after World War I, only God knows what the Nazis would have done with them).

Anti-Japanese Hatred Under FDR During World War II Was Even Worse

The discrimination and hostility that German-Americans experienced during World War I was nothing compared to what Japanese-Americans would endure after America entered World War II following the Japanese attack on Pearl Harbor. The Germans were white and European; the Japanese were neither. What happened to Japanese-Americans during World War II was -- most Americans today agree -- one of the most blatantly racist episodes in the nation's history.

And it was directed by none other than the man considered America's greatest president -- Theodore Roosevelt's nephew, Franklin Delano Roosevelt.

That the treatment of Japanese-Americans was motivated by anti-Asian racism was made clear by the uncovering of FBI documents from that era. From 1939 to 1941, the FBI compiled what the bureau called the Custodial Detention Index on U.S. citizens, "enemy" aliens and foreign nationals which might be dangerous. Interestingly, the so-called "enemy races" identified in the FBI's files specifically excluded those of German and Italian descent.

On June 28, 1940 -- two days before France surrendered to the Nazis -- Congress passed the the Alien Registration Act. Among its many provisions, the law, also known as the Smith Act, required the registration and fingerprinting of all foreign nationals residing in the United States above the age of 14 and that they report any change of address within five days. Within four months after the Smith Act took effect, more than 4.7 million foreign nationals living in the U.S. registered at post offices around the country.

When FDR signed the bill into law the next day, he ironically made the following statement: "It is of the utmost importance to the security of the country that the program of alien control shall be carried out with a high sense of responsibility. It would be unfortunate if, in the course of the regulative program, any loyal alien was subjected to harassment."

The Japanese attack on Pearl Harbor on December 7, 1941 led many Americans to suspect that Japan was preparing a full-scale attack on the West Coast. Further attacks, such as the fairly minor -- and now-forgotten -- incident of a Japanese submarine shelling a California oil refinery in 1942, redoubled these suspicions, although it was later proven that the attack was not caused by a Japanese submarine.

Japan's rapid military conquest of much of Asia made their war machine seem to some Americans frighteningly unstoppable. Civilian and military officials had concerns about the loyalty of Japanese-Americans and considered them to be a security risk.

Upon examination of historical record, it became clear that these concerns often grew more out of anti-Asian racial hatred than any actual security risk, particularly since no such alarm was raised about German-Americans and Italian-Americans.

Nor was the racist sentiment one-sided. Japanese propaganda films captured after the war revealed an equally racist attitude by Japan against the mostly-white Americans -- making it clear that each side saw the other as less than human.

Nonetheless, American attitudes toward the Japanese and Japanese-Americans in World War II stood in stark contrast to their attitudes toward Americans of German and Italian ancestry -- even when compared to the prejudice toward German-Americans during World War I. President Wilson never issued an executive order for the detention of Americans of German or Austro-Hungarian ancestry during that war.

Nor did FDR order the detention of German-Americans and Italian-Americans during World War II, not only because they were white, but also because the German-American and Italian-American communities had become more assimilated into mainstream American culture -- and, more importantly, represented a significant voting bloc. Plus, Americans of German and Italian ancestry numbered in the millions and were spread out all over the country, whereas there were fewer than a half-million Japanese-Americans and most of them lived in California and Hawaii, according to the 1940 Census.

Thus, on February 20, 1942, Roosevelt issued Executive Order 9066, ordering the forcible relocation of approximately 112,000 to 120,000 ethnic Japanese -- 62 percent of whom were U.S. citizens -- from their homes to hastily-constructed "war relocation camps" located primarily in remote regions, far from the country's major urban centers.

Roosevelt's order authorized U.S. military commanders to designate "military areas" at their discretion, "from which any or all persons may be excluded." These "exclusion zones," unlike the "alien enemy" roundups, were applicable to anyone that an authorized military commander might choose, whether citizen or non-citizen.

Eventually such areas would include both the east and west coasts, and about a third of the country's interior -- and were applied almost exclusively to all of those of Japanese ancestry, although there were many instances of Chinese-Americans also getting caught up in the internment. Indeed, the internments in California brought back memories of violent attacks on Chinese nationals and Chinese-Americans by white mobs in San Francisco in the late 1800s.

The internment order proved, however, to be impractical to enforce in Hawaii -- despite the fact that Japanese-Americans there were closer to essential military facilities than most of their compatriots on the U.S. mainland. This was because Japanese-Americans were over a third of Hawaii's population -- and were too vital to the islands' economy.

(Today, Hawaii is the only state in the U.S. that has a majority-Asian population and slightly more than 50 percent of Hawaii's residents are of Japanese ancestry -- including its soon-to-retire senior U.S. Senator, Daniel Inouye).

Roosevelt's internment order was challenged in dozens of lawsuits, four of which went all the way to the Supreme Court: Yasui v. United States (1943), Hirabayashi v. United States (1943), Ex-parte Endo (1944) and Korematsu v. United States (1944).
In all but the Endo case, the high court -- with a majority of justices who were Roosevelt appointees -- sided with the Roosevelt administration.

In Yasui and Hirabayshi, the justices upheld the constitutionality of curfews based on Japanese ancestry; in Korematsu, the high court upheld the constitutionality of the exclusion order. Only in Endo did the justices accept a petition for a writ of habeas corpus and ruled that the Army's War Relocation Administration had no authority to subject a U.S. citizen whose loyalty was acknowledged to its procedures.

Proof of Racist Intent Exposed 40 Years Later

It would not be until the 1980s that the high court's other three decisions -- denounced by legal scholars today as the most obscene miscarriages of justice in American history since the Dred Scott runaway-slave case a century earlier -- would finally be overturned in a series of coram nobis cases, in which lower courts ruled that newly-uncovered evidence revealing incontrovertible proof of racial bias, which -- had it been known to the high court at the time -- would likely had resulted in different outcomes.

These new court decisions rested on a series of documents recovered from the National Archives showing that the government had withheld important and relevant information from the Supreme Court regarding the Army's alteration of evidence: namely, a report by Gen. Thomas DeWitt, the Army's chief administrator of the internment program, citing reasons to justify it.

Incredibly, the report included DeWitt repeatedly telling reporters that "A Jap's a Jap" and testified to Congress, "I don't want any of them [persons of Japanese ancestry] here. They are a dangerous element. There is no way to determine their loyalty ... It makes no difference whether he is an American citizen, he is still a Jap. American citizenship does not necessarily determine loyalty. ... But we must worry about the Jap all the time until he is wiped off the map."

The documents also found that the Army had destroyed evidence in an effort to hide the fact that alterations had been made to DeWitt's report.

The coram nobis cases overturned the convictions in all three original cases, and are regarded as one of the impetuses for the passage of the Civil Liberties Act of 1988. It's important to note, however, that the coram nobis cases only nullified the factual underpinnings of the 1944 Korematsu case and its brethren. The legal conclusions in Korematsu -- specifically, its expansive interpretation of executive branch powers in wartime -- remained intact.

The Present Situation with Bush and the "War on Terror"

In light of this fact, a number of legal scholars have expressed the opinion that the original Korematsu and Hirabayashi decisions have taken on an added relevance in the context of President Bush's "war on terror."

There is one major problem with that analysis: Congress never issued a formal declaration of war on terror. It has never issued a formal declaration of war against either al-Qaida, its now-ousted Taliban sponsors in Afghanistan, on Saddam Hussein's Iraq or on Abu Mousab al-Zarqawi's al-Qaida in Iraq. In fact, Congress has not issued a formal declaration of war against anyone since 1941.

Article I, Section 8 of the Constitution clearly states that Congress, not the president, has the authority to declare war. Nowhere does the Constitution give that authority to the president. I submit that in the absence of a formal congressional declaration of war, Bush's claim that he has the authority to take the actions he has taken in time of war is legally and constitutionally suspect.

Congress authorized Bush only to take military action against al-Qaida and their Taliban sponsors in Afghanistan after the September 11, 2001 terrorist attacks on U.S. soil. It did not authorize the president to invade Iraq.

Nor did Congress authorize the president to initiate electronic surveillance on the telephone and Internet communications of U.S. citizens without prior judicial approval -- and, in fact, had explicitly barred the Executive Branch from doing so more than 25 years ago when it passed the Foreign Inteligence Surveillance Act (FISA).

Past presidents have committed unpleasant things in time of war. FDR's sins against Japanese-Americans were by far the most egregious. But other than Lincoln -- who was faced with a Congress crippled by the defection of its southern members to the Confederacy and the threat of the disintegration of the nation itself -- no president has ever so openly defied the will of Congress on matters of war with such arrogance than has George W. Bush.

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Volume I, Number 12
Copyright 2006, Skeeter Sanders. All rights reserved.

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