Briefly describe in your own words the following concepts1

Briefly describe in your own words the following concepts
1. gastrectomy
2. jejunostomy
3. colostomy
4. gastrostomy
5.PEG
References
American Legal History II
Civil Liberties in Wartime - The Global War on Terror
What is the role of law in society?
How does law impact society?
How does context impact law?
"Are all the laws but one to go unexecuted and the
government itself go to pieces lest that one be
violated."
Do the ends justify the means?

What is the balance between liberty and security?
What should be the status of civil liberties in
wartime?
Do we claim that new wars are without
precedent to justify new limitations upon
the freedoms guaranteed by the First
Amendment?
What is at stake in the balance between
national security and civil liberties?
Tonight’s Timeframe . . .
Civil War & Reconstruction → 1860 - 1877
Gilded Age → 1870s - 1900
Progressive Era → 1890s - 1920
American Imperialism → 1880s - 1914
World War I → 1914 - 1918
The Roaring Twenties → 1920 - 1929
Great Depression & New Deal → 1929 -
1941

World War II → 1941 - 1945
Post-War Boom → 1946 - 1959
Cold War → 1945 - 1991
Civil Rights Movement → 1954 - 1968
New Frontier & Great Society → 1960 -
1968
Vietnam War - 1954 - 1975
Era of Social Change - 1960 - 1980
End of the Century → 1980 - 2000
New Millenium → 2001 -
How is the Global War on Terror similar
to, or different from, wars previously
discussed in class?
How and why are these distinctions
important to the state of civil liberties?
9/11/2001
● NYC, PA, DC

● Al Qaeda
● 2977 Victims
● Attack by nation
vs. attack by
network
● Attacks created a
state of armed
conflict
● Motive → Fatwa
● President Bush:
Speech to Joint
Session of
Congress 9/20/01
● Righteous
Indignation
Global War on Terror - Scope of the Conflict
● NATO - Article 5
● Identifying, locating, and neutralizing
terrorists → Global Manhunt
● Bush Doctrine → “With us or with the
terrorists;” preventive action.
● Afghanistan, Taliban, and Al Qaeda
● 10/7/2001 → War in Afghanistan begins
→ Operation Enduring Freedom

● Coordinated effort of military and
intelligence agencies:
○ NSA, CIA, FBI, Department of
Defense, Department of Justice
Justifying Government Action
● Article II War Powers - Does the President have unlimited
power to protect
the nation in wartime?
● Foreign Intelligence Surveillance Act (1978)
○ Amendments - 2006 & 2007
● TWO Declarations of National Emergencies (2001)
● Authorization of the Use of Military Force (2001)
● “Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism”
Act (2001)
● Military Commission Order #1 (2002)
● Military Order on Detention, Treatment, and Trial of Certain
Non-Citizens in
the War Against Terrorism (2001)
● Detainee Treatment Act (2005)
● Military Commissions Act (2006)
Were American actions in the Global War
on Terror inherently virtuous?

If so, do international laws and
agreements unreasonably restrain
American action?
Justifying Government Action - AUMF
● That the President is authorized to use all necessary and
appropriate force
against those nations, organizations, or persons he determines
planned,
authorized, committed, or aided the terrorist attacks that
occurred on September
11, 2001, or harbored such organizations or persons, in order to
prevent any
future acts of international terrorism against the United States
by such nations,
organizations or persons.
● Congressional authorization for the Global War on Terror
Response to 9/11 - PATRIOT Act
● Expands authority to track and intercept communications
● Treasury → Money laundering
● New crimes (“Mass transit”), penalties, and procedures for
foreign
and domestic terrorists
● Borders and suspected terrorists
● Facilitate cooperation between law enforcement and
intelligence

agencies
● Expanded “material support” definition.
“We also have to work sort of the dark side, if you will. We're
going to spend time in the shadows in the intelligence world.
A lot of what needs to be done here will have to be done
quietly, without any discussions, using sources and methods
that are available to our intelligence agencies if we're going to
be successful. That's the world these folks operate in.
And so it's going to be vital for us to use any means at our
disposal, basically, to achieve our objective.”
Vice President Dick Cheney on “Meet the Press” - 9/16/01
Response to 9/11 - Military Action
● Ultimatum → Afghanistan
● Defeat the Taliban
● Dismantle terror networks
● Gather and act on
intelligence
● “Snatch and Grab” Missions
→ Night Raids
Legal Questions - Enemy Combatants?

● Article II War Powers & AUMF Authority
● “Material support for terrorism . . .”
● What was the government’s interest in enemy combatant
status after
9/11?
● If not enemy combatants . . . then what? And what is the
legal status
of these individuals?
● How do we arrive at an enemy combatant designation?
● How does an enemy combatant designation of an American
citizen
change their legal status?
● What is the difference between the seizure of enemy
combatants
abroad versus the seizure of American citizens taken abroad?
Response to 9/11 - Detention
● Guantanamo Bay - Cuba
○ Naval Base
○ Complicated sovereignty
○ Access to American Constitution or justice system?
Legal Questions - Indefinite Detention?
● PATRIOT Act and immigrant detention
● 5th Amendment - Due Process?

● Habeas Corpus?
● Citizen vs. Non-Citizen?
● Where initially detained? Where held?
● Does indefinite detention make America safer?
● Is it worth compromising American law in the interest of
safety and
security?
● Can citizens seized and detained in the United States be held
indefinitely as enemy combatants or terrorist suspects without
being
tried for any crime?
Response to 9/11 - Rendition
● Rendition → Extradition
● Abduction an extrajudicial transfer → Circumvention
● At least 3000 CIA Abductions between 2002 & 2005
● Black Sites:
○ 119 Known cases
○ 26 Mistaken identity
○ 39 EIT; 3 waterboarded
○ 7 produced no intelligence
○ Program disbanded between 2006 & 2009.
● Prison Ships
● “Torture by Proxy”

Response to 9/11 - Detention
Response to 9/11 - Black Sites
Legal Questions - Extraordinary Rendition?
● Does the unprecedented state of America following 9/11 and
the need
to quickly find and dismantle the Al Qaeda network (and
preempt
further attacks) justify extraordinary rendition?
● Do the prospective benefits of ER outweigh the costs?
○ What are the costs to America of extraordinary rendition?
Rights/Agreements/Treaties in Question
● 5th Amendment & 14th Amendment - Due Process
● Habeas Corpus
● Geneva Conventions (Combatants & Civilians; Independent
court to
decide on combatant status)
● United Nations Convention against Torture:
○ For the purposes of this Convention, the term "torture" means
any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a
third person information or a confession, punishing him for an

act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him
or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person
acting in an official capacity. It does not include
pain or suffering arising only from, inherent in or incidental to
lawful sanctions
● International Covenant on Civil and Political Rights
● Torture Victim Protection Act
Arar v. Ashcroft (2008)
● Arar → Canadian citizen
● Arrested at JFK; watchlist (2002)
● Deported/Rendered(?) to Syria and tortured
● Suspected Al Qaeda
● Cleared by Syrians and Canadians (upon return)
● Sued Ashcroft (Attorney General) and other American
officials
● U.S. Government:
○ Denied rendition
○ “State secrets” Privilege
● Arar:
○ Violated 5th Amendment
● Court of Appeals Dismissal

Controversial American Actions
Response to 9/11 - Enhanced Interrogation
Techniques
● Waterboarding
● The Box
● Sleep Deprivation
● Painful Stress Positions
● Humiliation
● Bush Justice Department Justifications → Torture Memos
● Senate Report opposed EIT (2012)
Legal Questions - Enhanced Interrogation
Techniques?
● Are the methods in violation of international agreements or
accepted
forms of interrogation?
● Are EIT effective? Did EIT make America safer?
● How might EIT and the subsequent fallout complicate future
prosecutions?
Recap
● Unprecedented, catastrophic attack on American soil
● Immediate, energetic executive action
● Expansive international military/intelligence coordination

● Extensive, global detention program
● Use of indefinite detention
● Use of enhanced interrogation techniques
● Congressional deference . . . collaboration
Habeas Corpus Suspension Clause
Article One, Section 9, clause 2, which demands that "The
privilege of the writ of habeas corpus shall not be
suspended, unless when in cases of rebellion or invasion
the public safety may require it."
Legal Questions - Habeas Corpus
● Do Habeas protections apply to citizens designated enemy
combatants? (Hamdi, Padilla)
● Do Habeas protections apply to non-citizens? Held at a site
outside
of America? (Boumediene)
● Do Habeas protections apply to non-citizens held by the
United
States in foreign territory over which the United States does not
hold
the same authority that it does over Guantanamo Bay?
Rumsfeld v. Padilla (2004)
● Jose Padilla → US Citizen

● Radicalized → Travels to Pakistan/Afghanistan - 2001
● Arrested plotting dirty bomb attack - 2002
● Designated enemy combatant - military confinement
○ Quirin
○ AUMF
● Habeas petition; Supreme Court dismissal; SC Federal
Prosecution
● Convicted - Conspiracy to murder and fund terrorism
Hamdi v. Rumsfeld (2004)
● Yaser Hamdi - American Citizen
● Seized in Afghanistan
● Accused member of Taliban
● Declared “enemy combatant and held in Guantanamo
● Transferred to VA Military Prison
● Hamdi’s Father:
○ Habeas Petition; 5th Amendment rights violated
● Government:
○ Wartime; Executive Branch can restrict “enemy combatants”
access to courts
● Questions(s):
○ Did the government violate Hamdi's Fifth Amendment right to
Due Process by holding
him indefinitely, without access to an attorney, based solely on
an Executive Branch
declaration that he was an "enemy combatant" who fought
against the United States?
○ Does the separation of powers doctrine require federal courts

to defer to Executive
Branch determinations that an American citizen is an "enemy
combatant"?
How can we reconcile and align Milligin,
Quirin, and Hamdi?
Timeline:
2001 → Military Executive Order
2002 → Military Commission Order #1
2002-2003 - Washington Post → Abu Ghraib
2004 → Post, WSJ, NY Times → Administration’s internal
defense of interrogation methods
2004 → Rasul, Padilla, Hamdi
2004 → Combatant Status Review Tribunals
2005 → Washington Post → Global detention
program/Extraordinary Rendition
2005 → Detainee Treatment Act
2006 → Hamdan
2006 → Military Commissions Act
2008 → Boumediene v. Bush
Hamdan v. Rumsfeld (2006)
● Hamdan → Yemeni bodyguard and chauffeur for Bin Laden
● Captured → U.S. Forces → Guantanamo
● Conspiracy to commit terrorism:
○ Military Commission → Military Commission Order No. 1
● Defense:

○ Habeas Petition → Was Hamdan a prisoner of war?
○ Challenged legitimacy of military commission.
● Question(s):
○ Can the Geneva conventions be enforced in federal court?
○ Was the military commission authorized by Congress or the
President?
● 5 - 4 Decision:
○ Yes and No
El Masri v. Tenet (2007)
● German & Lebanese citizen
● Abducted Macedonian Police and turned over to CIA in 2003
● Rendered to CIA Black Site in Afghanistan → Salt Pit
● Tortured for four months
● Returned to Albania by the CIA
● 2006 ACLU Lawsuit → Dismissed
● “State Secrets Privilege”
● Mistaken Identity?
○ Khalid al-Masri
Response to 9/11 - Military Commissions
● Administration’s Rationale:
○ Fear delays and release on legal technicalities.
○ Lower evidentiary requirements
○ Expedite process
○ 11/13 Order → Not subject to judicial review.

● Relationship to international law:
○ State actor or not?
○ Only state actors can commit war crimes.
○ International law cannot be changed unilaterally
○ Applying laws of war to terrorists groups legitimizes them
○ Bush admin disallowed POW entitlements under Geneva.
○ Attempts to change international law → Ex Post Facto?
Legal Questions - Military Commissions?
● Did the 9/11 attacks constitute war crimes? If there was no
war prior
to the attacks, can they be considered a violation of the law of
war?
● Can and should American citizens be tried by a military
commission
during wartime?
● Do military commissions apply ONLY to state actors or do
they also
apply to members of independent terrorist organizations?
● Compare and contrast the context of Ex Parte Quirin and the
use of
military commissions after the 9/11 attacks.
● The rule of law in wartime “(Is) military commissions. It’s
not to wrap
our enemies in the Bill of Rights.”
Rasul v. Bush (2004)

● “Tipton Three” → British citizens
● Detained in Afghanistan (Enemy Combatants) → Turned over
to U.S.
Military → Transferred to Guantanamo
● Charity work → Taliban training camp.
● Physical and religious abuse claims while detained.
● Habeas Corpus petition.
● Released March 2004
● Oral Arguments April 2004
● Major Question:
○ Do United States courts have jurisdiction to consider legal
appeals filed on behalf of foreign citizens held by
the United States military in Guantanamo Bay Naval Base,
Cuba?
● 6 - 3 Decision
Boumediene v. Bush (2008)
● Lakhdar Boumediene → Bosnian citizen → “Algerian Six”
● Group of humanitarian aid workers
● Suspected calls to Afghanistan and Pakistan after 9/11
● Arrested by Bosnian police; Bosnian Supreme Court orders
release (2002)
● U.S. Soldiers detain them upon release → Guantanamo
● Hunger Strike → Force feeding
● Habeas Corpus Petition (2004)
● Military Commissions Act → Strip Habeas from enemy
combatants.
● Habeas Corpus suspension clause:
○ “The privilege of the Writ of Habeas Corpus shall not be

suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it.”
● Circuit Court → MCA intended to overrule Hamdan
Boumediene v. Bush (2008) → Major Questions
● Should the Military Commissions Act of 2006 be interpreted
to strip federal courts of
jurisdiction over habeas petitions filed by foreign citizens
detained at the U.S. Naval
Base at Guantanamo Bay, Cuba?
● If so, is the Military Commissions Act of 2006 a violation of
the Suspension Clause of
the Constitution?
● Are the detainees at Guantanamo Bay entitled to the
protection of the Fifth Amendment
right not to be deprived of liberty without due process of law
and of the Geneva
Conventions?
● Can the detainees challenge the adequacy of judicial review
provisions of the MCA
before they have sought to invoke that review?
● 5 - 4 Decision

Boumediene v. Bush (2008) → Implications
● Habeas Corpus is important both as an individual right and
for separation of powers.
● Habeas Corpus protects PERSONS detained by the United
States
● Federal Courts have jurisdiction to review Habeas Petitions
● Habeas Corpus abroad?
Did the following pass Constitutional muster?
Denying detainees habeas corpus to suspected
terrorists
Blanket designation of detainees as enemy
combatants
Use of military tribunals to try detainees
designated as enemy combatants
To what degree was George W. Bush
and his administration successful in
bringing about a reconstruction of
executive power in order to carry out the
Global War on Terror?

The rule of law, security, safety, self-
respect, international reputation . . .
Targeted Killing
Why Targeted Killing?
● Changing Global War on Terror → The Obama Presidency
● Indefinite detention?
● Coercive Interrogation?
● Guantanamo Bay?
● Forever War? Boots on the Ground?
● What can make a forever war popular? Palatable?
● Minimize risk
● Surgical strikes, reducing collateral damage → Morally
preferable
○ Collaboration with on-the-ground intelligence.
● Disrupt, Degrade, Deter

Opposition to Targeted Killing
● United Nations
● Allies
● NGOs (ICRC, ACLU, etc.)
● Number of civilian casualties?
○ Dozens or hundreds?
○ Identification
● What is the role of law in the use of highly discrete weaponry
that has
an almost unlimited reach?
● Geography of War → When drone strikes are used do the laws
of war
naturally extend?
Legality of Drone Strikes
● AUMF → Will it always be applicable?
● Valid and ongoing non-international armed conflict (NIAC)
between the United
States, the Taliban, Al Qaeda, and associate forces, which
consequently
permits the USG to engage in at-will targeting of enemy
belligerents.

● American self-defense.
● Enacted by Congress? Supported by US legal code?
Regulated by any
federal agency? Judicial review?
● Secret, Executive Branch Law
Justifying Drone Strikes
● Prompted by international concern, investigative journalism
(FOIA Pressure),
and the killing of Anwar al-Awlaki (2010)
● OLC Memo (2010) → Released 2014
○ Lethal Operations against al-Awlaki would pass federal and
Constitutional considerations.
○ “Lawful conduct of war”
○ Is the target a “continued and imminent threat?”
○ Principle of Distinction
○ The burden of the 5th Amendment → Deprived of life,
liberty, or property . . .
■ Weigh private interest that will be affected by government
action against government’s
asserted interest and whether the government would be
burdened by providing greater
process.
● Obama Administration Drone “Playbook” (2013) → Released
2016
Does the strike meet the following basic principles of

the law of war?
● Necessity
● Proportionality
● Distinction
● Humanity
In what ways and to what extent has the
Global War on Terror complicated our
understanding of civil liberties in
wartime?
Slide 1Slide 2Slide 3Slide 4Tonight’s Timeframe . . .Slide
6Slide 79/11/2001Global War on Terror - Scope of the
ConflictJustifying Government ActionSlide 11Justifying
Government Action - AUMFResponse to 9/11 - PATRIOT
ActSlide 14Response to 9/11 - Military ActionLegal Questions -
Enemy Combatants?Response to 9/11 - DetentionLegal
Questions - Indefinite Detention?Response to 9/11 -
RenditionSlide 20Response to 9/11 - DetentionResponse to 9/11
- Black SitesLegal Questions - Extraordinary
Rendition?Rights/Agreements/Treaties in QuestionArar v.
Ashcroft (2008)Controversial American ActionsResponse to
9/11 - Enhanced Interrogation TechniquesLegal Questions -
Enhanced Interrogation Techniques?RecapHabeas Corpus
Suspension ClauseLegal Questions - Habeas CorpusRumsfeld v.
Padilla (2004)Hamdi v. Rumsfeld (2004)How can we reconcile
and align Milligin, Quirin, and Hamdi?Slide 35Hamdan v.
Rumsfeld (2006)El Masri v. Tenet (2007)Response to 9/11 -
Military CommissionsLegal Questions - Military

Commissions?Rasul v. Bush (2004)Boumediene v. Bush
(2008)Boumediene v. Bush (2008) → Major
QuestionsBoumediene v. Bush (2008) → ImplicationsSlide
44Slide 45Slide 46Targeted KillingSlide 48Why Targeted
Killing?Slide 50Slide 51Slide 52Slide 53Slide 54Opposition to
Targeted KillingLegality of Drone StrikesJustifying Drone
StrikesSlide 58Slide 59Slide 60Slide 61
Civil War & Reconstruction → 1860 - 1877
World War I → 1914 - 1918
1941
World War II → 1941 - 1945
Cold War → 1945 - 1991
1968

Civil Liberties in Wartime - The Cold War
violated."
wartime?
Do we claim that new wars are without

precedent to justify new limitations upon
the freedoms guaranteed by the First
Amendment?
Pre-World War II Anti-Communist Actions
● Palmer Raids and the First Red Scare
○ 1917 - 1920
○ Failure to distinguish (Communist, Anarchist, Socialist)
● Smith Act (1940):
○ Alien Registration
○ Criminal offense to advocate the violent overthrow of the
government or to
organize or be a member of any group or society devoted to
such advocacy.
● Dies Committee (1938 - 1944)
○ Special Investigating Committee
○ Investigate alleged disloyalty and subversive activities on the
part of private citizens, public
employees, and those organizations suspected of having
communist or fascist ties
○ Communist Focus
○ Japanese Camp Report - “Yellow Report”
○ Declined KKK investigation
Cold War - Framing the Conflict

● Russian Revolution and the Soviet Union
● Stalin, 5-Year Plan, and Modernization
● Nazi-Soviet Non-Aggression Pact
● Stalingrad and the Eastern Front
● Tehran, Yalta, Potsdam, and Wartime Relations among the
Allies
● Manchuria, Japan, Atomic Bombs, and the end of the war in
the
Pacific
● Two superpowers remain
Cold War - Scope of the Conflict
● Post-War world and divided worldviews
● NATO, Warsaw Pact, and divided Europe
● Hearts and Minds and the 3rd World → Proxy Wars
○ Foreign Policy Doctrines
● Espionage
○ NSA/CIA vs. NKVD → KGB
● Arms Race → M.A.D.
● Space Race
● Hot and Cold
Communism in America
● Rise in Membership 30s and 40s
● CPUSA
● Goals/Objectives → Convert via education and persuasion
● Spectrum (Moderate → Radical)

● Comintern → 5th Column
● “Fellow Travellers”
● Communist Fronts
● Targeted Groups → Labor Unions, Teachers/Professors,
Government
Agencies (especially State), Radio, Movies, TV, Newspapers,
Libraries, New Deal Democrats
Cold War - Anti-Communist Sentiment
● Subversion
● Preserve National Security
● Preventing Espionage
● Preserving Secrets
● Threat to established order
● “Infection” and a “Cancer”
○ Godless
○ Danger to American values
○ Foster industrial strife and redistribute capital
○ Poison national values (school, newspaper, movies)
○ Political taint would destroy liberty, justice, and goodness
○ Corruption of public officials would subvert government from
within.
Cold War - Anti-Communist
Propaganda
How to Identify a Communist . . .

The Arms Race and Early Cold War Context
● Free Elections in Eastern Europe blocked.
● Taft-Hartley Act (1947)
● HUAC elevated to standing committee (1947)
● Truman Doctrine → Aid to Greece
● Berlin Blockade/Airlift (1948 - 1949)
● People’s Republic of China (1949)
● Russia’s first atomic test (1949)
● Alger Hiss Accusation (1948) and Perjury Conviction (1950)
● Korean War begins (1950)
How was the Cold War different from
wars previously discussed in class?
Why are these distinctions important to
the state of civil liberties?
HUAC - 1945 - 1959
● Hollywood Ten
● Used by Republicans in 1948 Election
● 1949 Global Events, Distrust of
Soviets, Promotes HUAC
McCarthyism - 1950 - 1954

● 2/1950 → McCarthy at Wheeling (205 Names)
● Republican opportunism and public opinion.
● Korean War → Hysteria → Local repression
● McCarran Internal Security Act :
○ Registration of Communist Action and Front Organizations;
Detention
if war arose
○ Veto Override
● Red-Baiting and ‘50 Midterms
● Eventual downfall - Army-McCarthy Hearings
● Larger Questions:
○ Who is the larger threat? Communist or Anti-Communist?
What was the state of the First
Amendment during the Cold War?
How can the court’s interpretation of the
1st Amendment be compared to the
World War I era?
Dennis v. U.S. (1951)
● Eugene Dennis and Others →
CPUSA/Labor Leaders
● Filed false affidavits → Taft-Hartley
● Received NLRB services →
Conspiracy/Fraud

● Values, teaching, & free speech.
● What did the 1st Amendment require?
Clear and Present Danger
○ Advocacy of ideas?
○ “Gravity of evil” → Conspiring to
advocate.
● 1st Amendment → How or Whom?
● 6 - 2 Decision
○ Excerpts
● Post-Trial Prosecutions → 126 indicted; 93
of 106 convicted
In times of panic do we fear freedom?
Loyalty Oaths
● What is disloyalty? Should loyalty be enforced?
● Executive Order 9835
● Present and Prospective Employees
● Disloyal → “Membership in, affiliation with or sympathetic
association with any
foreign or domestic organization . . . designated by the Attorney
General as
totalitarian, fascist, Communist, or subversive.”
● Hearing? Judicial Review? Due Process?
● Witch-hunting → Re/Opening Files & Perpetual Jeopardy

● 12/1947 → List of subversive organizations
● 254 by 1953; Executive Order 10450 - Lower standards; 5th
Amendment
● 4.7 Million Investigated → 40,000 Further → 8000 Charged
→ 350
Discharged (2200 Resigned)
Adler v. Board of Education (1951)
● Loyalty Oaths → Feinberg Law
● Subversive Organizations → Dismissal
● Questioning by Superintendent
● New York Teachers’ Union Suit
● "Are you now or have you ever been a member of the
Communist
Party?"
● Refusal → Dismissal
● 6 - 3 Decision:
○ Excerpts
“Although government cannot
expropriate property without the payment
of compensation even for defense and
security, it can in the name of security
expropriate without compensation a
person’s reputation . . .”

Brown v. Board of Education (1954)
● Segregation as un-American.
● Justice Department Amicus Curiae
● Communist Propaganda
● “You may imagine what good use we are making of the
decision . .”
● American Psy-Ops and the state of racism.
● Compartmentalizing History vs. Utilizing Context
○ Dichotomous Narrative
● Organizing Cases Doctrinally vs. Artificial Barriers
Changing Context of the Cold War
● Korean War Armistice (1953)
● Stalin’s Death (1953)
● Downfall of McCarthy → Censure (1954)
● Khrushchev denounces Stalin (1956)
● Relaxed public hysteria → Peaceful coexistence?
● 4 New Justices on the Supreme Court
Cole v. Young (1956)
● Cole → FDA Inspector
● Veterans Preference Act (1944)
● Employment inconsistent with national security
● When may an employee be discharged under the Veterans'
Preference Act for implicating national security?

● 6 - 3 Decision
Yates v. U.S. (1957)
● 14 Communists from California
● Tried and convicted under Smith Act
● 6 - 1 Decision:
○ Distinction between the advocacy to
Do vs. Believe
○ Nature of Speech and Advocacy
○ Excerpts
○ Decision destroys Smith Act
Rosenberg v. U.S. (1953)● Julius and Ethel Rosenberg
● Violating Espionage Act (1917)
● “Communicating to a foreign
government, in wartime, secret
atomic and other military
information”
● Radar, Sonar, Jet Propulsion, &
Nuclear Weapons Designs
● Convicted and sentenced to death
● Tried under Atomic Energy Act? →
Stay
● 6 - 3 Decision to vacate stay
● VENONA Project

New York Times Co. v. U.S. (1971) - Context
● Context:
○ Vietnam
○ Protest
○ Top secret “history” (1967)
○ Leak
● NY Times and Washington Post publication
● Administration’s response and prior restraint
● Section 793 of the Espionage Act
● Question → Did the Nixon administration's efforts to prevent
the publication of
what it termed "classified information" violate the First
Amendment?
● 6 - 3 Decision
Tonight’s Timeframe . . .Slide 2Slide 3Slide 4Pre-World War II
Anti-Communist ActionsCold War - Framing the ConflictCold
War - Scope of the ConflictCommunism in AmericaCold War -
Anti-Communist SentimentCold War - Anti-Communist
PropagandaHow to Identify a Communist . . .The Arms Race
and Early Cold War ContextSlide 13HUAC - 1945 -
1959McCarthyism - 1950 - 1954Slide 16Dennis v. U.S. (1951)In
times of panic do we fear freedom?Loyalty OathsAdler v. Board
of Education (1951)Slide 21Brown v. Board of Education
(1954)Changing Context of the Cold WarCole v. Young
(1956)Yates v. U.S. (1957)Rosenberg v. U.S. (1953)New York
Times Co. v. U.S. (1971) - Context
Excerpts from the Majority Opinion in U.S. v. Dennis (1951)
Overthrow of the Government by force and violence is certainly
a substantial enough interest for the Government to limit
speech. Indeed, this is the ultimate value of any society, for if a

society cannot protect its very structure from armed internal
attack, it must follow that no subordinate value can be
protected. If, then, this interest may be protected, the literal
problem which is presented is what has been meant by the use
of the phrase "clear and present danger" of the utterances
bringing about the evil within the power of Congress to punish.
Obviously, the words cannot mean that, before the Government
may act, it must wait until the putsch is about to be executed,
the plans have been laid and the signal is awaited. If
Government is aware that a group aiming at its overthrow is
attempting to indoctrinate its members and to commit them to a
course whereby they will strike when the leaders feel the
circumstances permit, action by the Government is required.
The argument that there is no need for Government to concern
itself, for Government is strong, it possesses ample powers to
put down a rebellion, it may defeat the revolution with ease
needs no answer. For that is not the question. Certainly an
attempt to overthrow the Government by force, even though
doomed from the outset because of inadequate numbers or
power of the revolutionists, is a sufficient evil for Congress to
prevent. The damage which such attempts create both physically
and politically to a nation makes it impossible to measure the
validity in terms of the probability of success, or the immediacy
of a successful attempt. In the instant case, the trial judge
charged the jury that they could not convict unless they found
that petitioners intended to overthrow the Government"as
speedily as circumstances would permit." This does not mean,
and could not properly mean, that they would not strike until
there was certainty of success. What was meant was that the
revolutionists would strike when they thought the time was ripe.
We must therefore reject the contention that success or
probability of success is the criterion.
We hold that §§ 2(a)(1), 2(a)(3) and 3 of the Smith Act do not
inherently, or as construed or applied in the instant case, violate
the First Amendment and other provisions of the Bill of Rights,
or the First and Fifth Amendments because of indefiniteness.

Petitioners intended to overthrow the Government of the United
States as speedily as the circumstances would permit. Their
conspiracy to organize the Communist Party and to teach and
advocate the overthrow of the Government of the United States
by force and violence created a "clear and present danger" of an
attempt to overthrow the Government by force and violence.
They were properly and constitutionally convicted for violation
of the Smith Act. The judgments of conviction are
Affirmed.
Excerpts from the Decision in Adler v. Board of Education
(1951)
The preamble of the Feinberg Law, § 1, makes elaborate
findings that members of subversive groups, particularly of the
Communist Party and its affiliated organizations, have been
infiltrating into public employment in the public schools of the
State; that this has occurred and continues notwithstanding the
existence of protective statutes designed to prevent the
appointment to or retention in employment in public office, and
particularly in the public schools, of members of any
organizations which teach or advocate that the government of
the United States or of any state or political subdivision thereof
shall be overthrown by force or violence or by any other
unlawful means. As a result, propaganda can be disseminated
among the children by those who teach them and to whom they
look for guidance, authority, and leadership. The Legislature
further found that the members of such groups use their
positions to advocate and teach their doctrines, and are
frequently bound by oath, agreement, pledge, or understanding
to follow, advocate and teach a prescribed party line or group
dogma or doctrine without regard to truth or free inquiry. This
propaganda, the Legislature declared, is sufficiently subtle to
escape detection in the classroom; thus, the menace of such
infiltration into the classroom is difficult to measure. Finally, to
protect the children from such influence, it was thought
essential that the laws prohibiting members of such groups,

such as the Communist Party or its affiliated organizations,
from obtaining or retaining employment in the public schools be
rigorously enforced. It is the purpose of the Feinberg Law to
provide for the disqualification and removal of superintendents
of schools, teachers, and employees in the public schools in any
city or school district of the State who advocate the overthrow
of the Government by unlawful means or who are members of
organizations which have a like purpose.
It is clear that such persons have the right under our law to
assemble, speak, think and believe as they will.Communications
Assn. v. Douds, 339 U.S. 382. It is equally clear that they have
no right to work for the State in the school system on their own
terms. United Public Workers v. Mitchell, 330 U.S. 75. They
may work for the school system upon the reasonable terms laid
down by the proper authorities of New York. If they do not
choose to work on such terms, they are at liberty to retain their
beliefs and associations and go elsewhere. Has the State thus
deprived them of any right to free speech or assembly? We
think not. Such persons are or may be denied, under the statutes
in question, the privilege of working for the school system of
the State of New York because, first, of their advocacy of the
overthrow of the government by force or violence, or, secondly,
by unexplained membership in an organization found by the
school authorities, after notice and hearing, to teach and
advocate the overthrow of the government by force or violence,
and known by such persons to have such purpose.Excerpts from
the Majority & Concurring Opinions in Yates v. U.S. (1957)We
are thus faced with the question whether the Smith Act prohibits
advocacy and teaching of forcible overthrow as an abstract
principle, divorced from any effort to instigate action to that
end, so long as such advocacy or teaching is engaged in with
evil intent. We hold that it does not. ... In failing to distinguish
between advocacy of forcible overthrow as an abstract doctrine
and advocacy of action to that end, the District Court appears to
have been led astray by the holding in Dennisthat advocacy of

violent action to be taken at some future time was enough.In a
concurring opinion Justice Hugo Black wrote:Doubtlessly,
dictators have to stamp out causes and beliefs which they deem
subversive to their evil regimes. But governmental suppression
of causes and beliefs seems to me to be the very antithesis of
what our Constitution stands for. The choice expressed in the
First Amendment in favor of free expression was made against a
turbulent background by men such as Jefferson, Madison, and
Mason – men who believed that loyalty to the provisions of this
Amendment was the best way to assure a long life for this new
nation and its Government. ... The First Amendment provides
the only kind of security system that can preserve a free
government – one that leaves the way wide open for people to
favor, discuss, advocate, or incite causes and doctrines however
obnoxious and antagonistic such views may be to the rest of us.
Excerpts from the Majority Opinion in Cole v. Young (1956)
. . . If Congress intended the term to have such a broad meaning
that all positions in the Government could be said to be affected
with the "national security," the result would be that the 1950
Act, though in form but an exception to the general personnel
laws, could be utilized effectively to supersede those laws. For
why could it not be said that national security in that sense
requires not merely loyal and trustworthy employees but also
those that are industrious and efficient? The relationship of the

job to the national security being the same, its demonstrated
inadequate performance because of inefficiency or
incompetence would seem to present a surer threat to national
security, in the sense of the general welfare, than a mere doubt
as to the employee's loyalty.
Finally, the conclusion we draw from the face of the Act that
"national security" was used in a limited and definite sense is
amply supported by the legislative history of the Act.
From our holdings (1) that not all positions in the Government
are affected with the "national security" as that term is used in
the 1950 Act, and (2) that no determination has been made that
petitioner's position was one in which he could adversely affect
the "national security," it necessarily follows that petitioner's
discharge was not authorized by the 1950 Act. In reaching this
conclusion, we are not confronted with the problem of
reviewing the Secretary's exercise of discretion, since the bas is
for our decision is simply that the standard prescribed by the
Executive Order and applied by the Secretary is not in
conformity with the Act. Since petitioner's discharge was not
authorized by the 1950 Act and hence violated the Veterans'
Preference Act, the judgment of the Court of Appeals is
reversed and the case is remanded to the District Court for
further proceedings not inconsistent with this opinion.
Excerpts from the Majority Opinion in Rasul v. Bush (2004)
Petitioners in these cases are 2 Australian citizens and 12
Kuwaiti citizens who were captured abroad during hostilities
between the United States and the Taliban. Since early 2002,
the U.S. military has held them–along with, according to the

Government’s estimate, approximately 640 other non-Americans
captured abroad–at the Naval Base at Guantanamo Bay. The
United States occupies the Base, which comprises 45 square
miles of land and water along the southeast coast of Cuba,
pursuant to a 1903 Lease Agreement executed with the newly
independent Republic of Cuba in the aftermath of the Spanish-
American War. Under the Agreement, “the United States
recognizes the continuance of the ultimate sovereignty of the
Republic of Cuba over the [leased areas],” while “the Republic
of Cuba consents that during the period of the occupation by the
United States … the United States shall exercise complete
jurisdiction and control over and within said areas.” In 1934,
the parties entered into a treaty providing that, absent an
agreement to modify or abrogate the lease, the lease would
remain in effect “[s]o long as the United States of America shall
not abandon the … naval station of Guantanamo.” Comment by
Joseph Dwyer: Guantanamo Lease Agreement
In 2002, petitioners, through relatives acting as their next
friends, filed various actions in the U.S. District Court for the
District of Columbia challenging the legality of their detention
at the Base. All alleged that none of the petitioners has ever
been a combatant against the United States or has ever engaged
in any terrorist acts. They also alleged that none has been
charged with any wrongdoing, permitted to consult with
counsel, or provided access to the courts or any other tribunal.
The question now before us is whether the habeas statute
confers a right to judicial review of the legality of Executive
detention of aliens in a territory over which the United States
exercises plenary and exclusive jurisdiction, but not “ultimate
sovereignty.” Comment by Joseph Dwyer: Question for the
court. Does Habeas petition allow for judicial review of
executive detention?
Application of the habeas statute to persons detained at the base
is consistent with the historical reach of the writ of habeas
corpus. At common law, courts exercised habeas jurisdiction

over the claims of aliens detained within sovereign territory of
the realm, as well as the claims of persons detained in the so-
called “exempt jurisdictions,” where ordinary writs did not run,
and all other dominions under the sovereign’s control. As Lord
Mansfield wrote in 1759, even if a territory was “no part of the
realm,” there was “no doubt” as to the court’s power to issue
writs of habeas corpus if the territory was “under the subjection
of the Crown.” King v. Cowle, 2 Burr. 834, 854—855, 97 Eng.
Rep. 587, 598—599 (K. B.). Later cases confirmed that the
reach of the writ depended not on formal notions of territorial
sovereignty, but rather on the practical question of “the exact
extent and nature of the jurisdiction or dominion exercised in
fact by the Crown.” Ex parte Mwenya, [1960] 1 Q. B. 241, 303
(C. A.) (Lord Evershed, M. R.)
In the end, the answer to the question presented is clear.
Petitioners contend that they are being held in federal custody
in violation of the laws of the United States.
No party questions the District Court’s jurisdiction over
petitioners’ custodians. Cf. Braden, 410 U.S., at 495. Section
2241, by its terms, requires nothing more. We therefore hold
that §2241 confers on the District Court jurisdiction to hear
petitioners’ habeas corpus challenges to the legality of their
detention at the Guantanamo Bay Naval Base.
Whether and what further proceedings may become necessary
after respondents make their response to the merits of
petitioners’ claims are matters that we need not address now .
What is presently at stake is only whether the federal courts
have jurisdiction to determine the legality of the Executive’s
potentially indefinite detention of individuals who claim to be
wholly innocent of wrongdoing. Answering that question in the
affirmative, we reverse the judgment of the Court of Appeals
and remand for the District Court to consider in the first
instance the merits of petitioners’ claims. Comment by
Joseph Dwyer: Lower courts must consider the merits of
petitioners' Habeas claims.

Excerpts from the Majority Opinion in Hamdi v. Rumsfeld
(2004)
Even in cases in which the detention of enemy combatants is
legally authorized, there remains the question of what process is
constitutionally due to a citizen who disputes his enemy-
combatant status. Hamdi argues that he is owed a meaningful
and timely hearing and that “extra-judicial detention [that]
begins and ends with the submission of an affidavit based on
third-hand hearsay” does not comport with the Fifth and
Fourteenth Amendments. The Government counters that any
more process than was provided below would be both

unworkable and “constitutionally intolerable.” Our resolution
of this dispute requires a careful examination both of the writ of
habeas corpus, which Hamdi now seeks to employ as a
mechanism of judicial review, and of the Due Process Clause,
which informs the procedural contours of that mechanism in this
instance. Comment by Joseph Dwyer: How should we resolve
enemy combatant disputes? Comment by Joseph Dwyer:
Dispute - How much process? Comment by Joseph Dwyer: Due
Process and Habeas Consideration
. . . the exigencies of the circumstances may demand that, aside
from these core elements, enemy combatant proceedings may be
tailored to alleviate their uncommon potential to burden the
Executive at a time of ongoing military conflict. Hearsay, for
example, may need to be accepted as the most reliable available
evidence from the Government in such a proceeding. Likewise,
the Constitution would not be offended by a presumption in
favor of the Government’s evidence, so long as that
presumption remained a rebuttable one and fair opportunity for
rebuttal were provided. Thus, once the Government puts forth
credible evidence that the habeas petitioner meets the enemy-
combatant criteria, the onus could shift to the petitioner to rebut
that evidence with more persuasive evidence that he falls
outside the criteria. A burden-shifting scheme of this sort
would meet the goal of ensuring that the errant tourist,
embedded journalist, or local aid worker has a chance to prove
military error while giving due regard to the Executive once it
has put forth meaningful support for its conclusion that the
detainee is in fact an enemy combatant. In the words of
Mathews, process of this sort would sufficiently address the
“risk of erroneous deprivation” of a detainee’s liberty interest
while eliminating certain procedures that have questionable
additional value in light of the burden on the Government. 424
U.S., at 335 Comment by Joseph Dwyer: What might this
process look like?
We think it unlikely that this basic process will have the dire

impact on the central functions of warmaking that the
Government forecasts. The parties agree that initial captures on
the battlefield need not receive the process we have discussed
here; that process is due only when the determination is made to
continue to hold those who have been seized. The Government
has made clear in its briefing that documentation regarding
battlefield detainees already is kept in the ordinary course of
military affairs. Brief for Respondents 3—4. Any factfinding
imposition created by requiring a knowledgeable affiant to
summarize these records to an independent tribunal is a minimal
one. Likewise, arguments that military officers ought not have
to wage war under the threat of litigation lose much of their
steam when factual disputes at enemy-combatant hearings are
limited to the alleged combatant’s acts. This focus meddles
little, if at all, in the strategy or conduct of war, inquiring only
into the appropriateness of continuing to detain an individual
claimed to have taken up arms against the United States. While
we accord the greatest respect and consideration to the
judgments of military authorities in matters relating to the
actual prosecution of a war, and recognize that the scope of that
discretion necessarily is wide, it does not infringe on the core
role of the military for the courts to exercise their own time-
honored and constitutionally mandated roles of reviewing and
resolving claims like those presented here. Cf. Korematsu v.
United States, 323 U.S. 214, 233—234 (1944) (Murphy, J.,
dissenting) (“[L]ike other claims conflicting with the asserted
constitutional rights of the individual, the military claim must
subject itself to the judicial process of having its reasonableness
determined and its conflicts with other interests reconciled”);
Sterling v. Constantin, 401 (1932) (“What are the allowable
limits of military discretion, and whether or not they have been
overstepped in a particular case, are judicial questions”).
Comment by Joseph Dwyer: Process unlikely to adversely
impact war-making power. Comment by Joseph Dwyer:
Deference only to a point.

Excerpts from the Majority Opinion in Hamdan v. Rumsfeld
(2006)
The military commission, a tribunal neither mentioned in the
Constitution nor created by statute, was born of military
necessity. See W. Winthrop, Military Law and Precedents 831
(rev. 2d ed. 1920) (hereinafter Winthrop). Though foreshadowed
in some respects by earlier tribunals like the Board of General
Officers that General Washington convened to try British Major
John André for spying during the Revolutionary War, the
commission “as such” was inaugurated in 1847. Id., at 832; G.
Davis, A Treatise on the Military Law of the United States 308
(2d ed. 1909) (hereinafter Davis). As commander of occupied
Mexican territory, and having available to him no other
tribunal, General Winfield Scott that year ordered the
establishment of both “ ‘military commissions’ ” to try ordinary
crimes committed in the occupied territory and a “council of
war” to try offenses against the law of war. Winthrop 832
(emphases in original). Comment by Joseph Dwyer: Origins of
military commissions.

Quirin is the model the Government invokes most frequently to
defend the commission convened to try Hamdan. That is both
appropriate and unsurprising. Since Guantanamo Bay is neither
enemy-occupied territory nor under martial law, the law -of-war
commission is the only model available. At the same time, no
more robust model of executive power exists; Quirin represents
the high-water mark of military power to try enemy combatants
for war crimes. Comment by Joseph Dwyer: Quirin is really the
only precedent that exists for military commissions.
At a minimum, the Government must make a substantial
showing that the crime for which it seeks to try a defendant by
military commission is acknowledged to be an offense against
the law of war. That burden is far from satisfied here. The crime
of “conspiracy” has rarely if ever been tried as such in this
country by any law-of-war military commission not exercising
some other form of jurisdiction, and does not appear in either
the Geneva Conventions or the Hague Conventions—the major
treaties on the law of war. Winthrop explains that under the
common law governing military commissions, it is not enough
to intend to violate the law of war and commit overt acts in
furtherance of that intention unless the overt acts either are
themselves offenses against the law of war or constitute steps
sufficiently substantial to qualify as an attempt. See Winthrop
841 (“[T]he jurisdiction of the military commission should be
restricted to cases of offence consisting in overt acts, i.e., in
unlawful commissions or actual attempts to commit, and not in
intentions merely” (emphasis in original)). Comment by
Joseph Dwyer: Government must demonstrate violation of law
of war in order to justify military commission. Comment by
Joseph Dwyer: Conspiracy not a high enough standard.
Finally, international sources confirm that the crime charged
here is not a recognized violation of the law of war. As
observed above, none of the major treaties governing the law of

war identifies conspiracy as a violation thereof. And the only
“conspiracy” crimes that have been recognized by international
war crimes tribunals (whose jurisdiction often extends beyond
war crimes proper to crimes against humanity and crimes
against the peace) are conspiracy to commit genocide and
common plan to wage aggressive war, which is a crime against
the peace and requires for its commission actual participation in
a “concrete plan to wage war.” 1 Trial of the Major War
Criminals Before the International Military Tribunal:
Nuremberg, 14 November 1945–1 October 1946, p. 225 (1947).
The International Military Tribunal at Nuremberg, over the
prosecution’s objections, pointedly refused to recognize as a
violation of the law of war conspiracy to commit war crimes,
see, e.g., 22 id., at 469, and convicted only Hitler’s most senior
associates of conspiracy to wage aggressive war, see S.
Pomorski, Conspiracy and Criminal Organization, in the
Nuremberg Trial and International Law 213, 233–235 (G.
Ginsburgs & V. Kudriavtsev eds. 1990). As one prominent
figure from the Nuremberg trials has explained, members of the
Tribunal objected to recognition of conspiracy as a violation of
the law of war on the ground that “[t]he Anglo-American
concept of conspiracy was not part of European legal systems
and arguably not an element of the internationally recognized
laws of war.” T. Taylor, Anatomy of the Nuremberg Trials: A
Personal Memoir 36 (1992); see also id., at 550 (observing that
Francis Biddle, who as Attorney General prosecuted the
defendants in Quirin, thought the French judge had made a “
‘persuasive argument that conspiracy in the truest sense is not
known to international law’ ”). Comment by Joseph Dwyer:
Conspiracy did not even hold up at Nuremberg.
We have assumed, as we must, that the allegations made in the
Government’s charge against Hamdan are true. We have
assumed, moreover, the truth of the message implicit in that
charge—viz., that Hamdan is a dangerous individual whose
beliefs, if acted upon, would cause great harm and even death to

innocent civilians, and who would act upon those beliefs if
given the opportunity. It bears emphasizing that Hamdan does
not challenge, and we do not today address, the Government’s
power to detain him for the duration of active hostilities in
order to prevent such harm. But in undertaking to try Hamdan
and subject him to criminal punishment, the Executive is bound
to comply with the Rule of Law that prevails in this
jurisdiction. Comment by Joseph Dwyer: Where the court
agrees and disagrees with government action.
Excerpts from the Majority Opinion in Boumediene v. Bush
(2008) by Justice Kennedy
After Hamdi, the Deputy Secretary of Defense established
Combatant Status Review Tribunals (CSRTs) to determine
whether individuals detained at Guantanamo were “enemy
combatants,” as the Department defines that term. Comment by
Joseph Dwyer: Results of Hamdi.
Interpreting the AUMF, the Department of Defense ordered the
detention of these petitioners, and they were transferred to
Guantanamo. Some of these individuals were apprehended on
the battlefield in Afghanistan, others in places as far away from
there as Bosnia and Gambia. All are foreign nationals, but none
is a citizen of a nation now at war with the United States. Each
denies he is a member of the al Qaeda terrorist network that
carried out the September 11 attacks or of the Taliban regime
that provided sanctuary for al Qaeda. Each petitioner appeared
before a separate CSRT; was determined to be an enemy
combatant; and has sought a writ of habeas corpus in the United
States District Court for the District of Columbia. Comment by
Joseph Dwyer: Facts in this case.
In deciding the constitutional questions now presented we must

determine whether petitioners are barred from seeking the writ
or invoking the protections of the Suspension Clause either
because of their status, i.e., petitioners’ designation by the
Executive Branch as enemy combatants, or their physical
location, i.e., their presence at Guantanamo Bay. The
Government contends that noncitizens designated as enemy
combatants and detained in territory located outside our
Nation’s borders have no constitutional rights and no privilege
of habeas corpus. Petitioners contend they do have cognizable
constitutional rights and that Congress, in seeking to eliminate
recourse to habeas corpus as a means to assert those rights,
acted in violation of the Suspension Clause. Comment by
Joseph Dwyer: Constitutional Question - Habeas Comment by
Joseph Dwyer: Government and Petitioners' positions.
The Court has discussed the issue of the Constitutio n’s
extraterritorial application on many occasions. These decisions
undermine the Government’s argument that, at least as applied
to noncitizens, the Constitution necessarily stops where de jure
sovereignty ends . . . Fundamental questions regarding the
Constitution’s geographic scope first arose at the dawn of the
20th century when the Nation acquired noncontiguous
Territories: Puerto Rico, Guam, and the Philippines—ceded to
the United States by Spain at the conclusion of the Spanish-
American War—and Hawaii—annexed by the United States in
1898. At this point Congress chose to discontinue its previous
practice of extending constitutional rights to the territories by
statute. Comment by Joseph Dwyer: Question of
extraterritorial application of the Constitutio n (INSULAR
CASES...)
The Government’s formal sovereignty-based test raises
troubling separation-of-powers concerns as well. The political
history of Guantanamo illustrates the deficiencies of this
approach. The United States has maintained complete and
uninterrupted control of the bay for over 100 years. At the close

of the Spanish-American War, Spain ceded control over the
entire island of Cuba to the United States and specifically
“relinquishe[d] all claim[s] of sovereignty … and title.” See
Treaty of Paris, Dec. 10, 1898, U. S.-Spain, Art. I, 30Stat. 1755,
T. S. No. 343. From the date the treaty with Spain was signed
until the Cuban Republic was established on May 20, 1902, the
United States governed the territory “in trust” for the benefit of
the Cuban people. And although it recognized, by entering into
the 1903 Lease Agreement, that Cuba retained “ultimate
sovereignty” over Guantanamo, the United States continued to
maintain the same plenary control it had enjoyed since 1898.
Yet the Government’s view is that the Constitution had no
effect there, at least as to noncitizens, because the United States
disclaimed sovereignty in the formal sense of the term. The
necessary implication of the argument is that by surrendering
formal sovereignty over any unincorporated territory to a third
party, while at the same time entering into a lease that grants
total control over the territory back to the United States, it
would be possible for the political branches to govern without
legal constraint. Comment by Joseph Dwyer: Gov'ts position
that based on nature of Guantanamo, the Constitution does not
apply there.
Our basic charter cannot be contracted away like this. The
Constitution grants Congress and the President the power to
acquire, dispose of, and govern territory, not the power to
decide when and where its terms apply. Even when the United
States acts outside its borders, its powers are not “absolute and
unlimited” but are subject “to such restrictions as are expressed
in the Constitution.
It is true that before today the Court has never held that
noncitizens detained by our Government in territory over which
another country maintains de jure sovereignty have any rights
under our Constitution. But the cases before us lack any precise
historical parallel. They involve individuals detained by
executive order for the duration of a conflict that, if measured
from September 11, 2001, to the present, is already among the

longest wars in American history. The detainees, moreover, are
held in a territory that, while technically not part of the United
States, is under the complete and total control of our
Government. Under these circumstances the lack of a precedent
on point is no barrier to our holding. Comment by Joseph
Dwyer: Uncharted territory.
We hold that Art. I, §9, cl. 2, of the Constitution has full effect
at Guantanamo Bay. If the privilege of habeas corpus is to be
denied to the detainees now before us, Congress must act in
accordance with the requirements of the Suspension Clause. Cf.
Hamdi, 542 U. S., at 564 (Scalia, J., dissenting) (“[I]ndefinite
imprisonment on reasonable suspicion is not an available option
of treatment for those accused of aiding the enemy, absent a
suspension of the writ”). This Court may not impose a de facto
suspension by abstaining from these controversies. See Hamdan,
548 U. S., at 585, n. 16 (“[A]bstention is not appropriate in
cases … in which the legal challenge ‘turn[s] on the status of
the persons as to whom the military asserted its power’ ”5. The
MCA does not purport to be a formal suspension of the writ;
and the Government, in its submissions to us, has not argued
that it is. Petitioners, therefore, are entitled to the privilege of
habeas corpus to challenge the legality of their detention.
Comment by Joseph Dwyer: Military Commission Act did
not suspend Habeas Corpus.
Our opinion does not undermine the Executive’s powers as
Commander in Chief. On the contrary, the exercise of those
powers is vindicated, not eroded, when confirmed by the
Judicial Branch. Within the Constitution’s separation-of-powers
structure, few exercises of judicial power are as legitimate or as
necessary as the responsibility to hear challenges to the
authority of the Executive to imprison a person. Some of these
petitioners have been in custody for six years with no definitive
judicial determination as to the legality of their detention. Their
access to the writ is a necessity to determine the lawfulness of
their status, even if, in the end, they do not obtain the relief
they seek. Comment by Joseph Dwyer: This decision does not

undermine executive power.
Because our Nation’s past military conflicts have been of
limited duration, it has been possible to leave the outer
boundaries of war powers undefined. If, as some fear, terrorism
continues to pose dangerous threats to us for years to come, the
Court might not have this luxury. This result is not inevitable,
however. The political branches, consistent with their
independent obligations to interpret and uphold the
Constitution, can engage in a genuine debate about how best to
preserve constitutional values while protecting the Nation from
terrorism. Comment by Joseph Dwyer: Constitutional
application and length of conflict.
It bears repeating that our opinion does not address the content
of the law that governs petitioners’ detention. That is a matter
yet to be determined. We hold that petitioners may invoke the
fundamental procedural protections of habeas corpus. The laws
and Constitution are designed to survive, and remain in force, in
extraordinary times. Liberty and security can be reconciled; and
in our system they are reconciled within the framework of the
law. The Framers decided that habeas corpus, a right of first
importance, must be a part of that framework, a part of that law.
Comment by Joseph Dwyer: Habeas petitions must
continue.

Excerpts from the Military Commissions Act (2006)
Definitions ‘‘In this chapter:
‘‘(1) UNLAWFUL ENEMY COMBATANT.—(A) The term
‘unlawful enemy combatant’ means— ‘‘(i) a person who has
engaged in hostilities or who has purposefully and materially
supported hostilities against the United States or its co-
belligerents who is not a lawful enemy combatant (including a
person who is part of the Taliban, al Qaeda, or associated
forces); or ‘‘(ii) a person who, before, on, or after the date of
the enactment of the Military Commissions Act of 2006, has
been determined to be an unlawful enemy combatant by a
Combatant Status Review Tribunal or another competent
tribunal established under the authority of the President or the
Secretary of Defense.
‘‘(2) LAWFUL ENEMY COMBATANT.—The term ‘lawful
enemy combatant’ means a person who is— ‘‘(A) a member of
the regular forces of a State party engaged in hostilities against
the United States; ‘‘(B) a member of a militia, volunteer corps,
or organized resistance movement belonging to a State party
engaged in such hostilities, which are under responsible
command, wear a fixed distinctive sign recognizable at a
distance, carry their arms openly, and abide by the law of war;
or ‘‘(C) a member of a regular armed force who professes
allegiance to a government engaged in such hostilities, but not
recognized by the United States.
Jurisdiction of military commissions
‘‘(a) JURISDICTION.—A military commission under this
chapter shall have jurisdiction to try any offense made
punishable by this chapter or the law of war when committed by
an alien unlawful enemy combatant before, on, or after
September 11, 2001.

‘‘(b) LAWFUL ENEMY COMBATANTS.—Military
commissions under this chapter shall not have jurisdiction over
lawful enemy combatants. Lawful enemy combatants who
violate the law of war are subject to chapter 47 of this title.
Courts-martial established under that chapter shall have
jurisdiction to try a lawful enemy combatant for any offense
made punishable under this chapter.
‘‘(c) DETERMINATION OF UNLAWFUL ENEMY
COMBATANT STATUS DISPOSITIVE.—A finding, whether
before, on, or after the date of the enactment of the Military
Commissions Act of 2006, by a Combatant Status Review
Tribunal or another competent tribunal established under the
authority of the President or the Secretary of Defense that a
person is an unlawful enemy combatant is dispositive for
purposes of jurisdiction for trial by military commission under
this chapter.
‘‘(d) PUNISHMENTS.—A military commission under this
chapter may, under such limitations as the Secretary of Defense
may prescribe, adjudge any punishment not forbidden by this
chapter, including the penalty of death when authorized under
this chapter or the law of war.
SEC. 7. HABEAS CORPUS MATTERS. (a) IN GENERAL.—
Section 2241 of title 28, United States Code, is amended by
striking both the subsection (e) added by section1005(e)(1) of
Public Law 109–148 (119 Stat. 2742) and the subsection (e)
added by added by section 1405(e)(1) of Public Law 109–163
(119 Stat. 3477) and inserting the following new subsection (e):
‘‘(e)(1) No court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas corpus filed
by or on behalf of an alien detained by the United States who
has been determined by the United States to have been properly
detained as an enemy combatant or is awaiting such
determination.
‘‘(2) Except as provided in paragraphs (2) and (3) of section
1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801

note), no court, justice, or judge shall have jurisdiction to hear
or consider any other action against the United States or its
agents relating to any aspect of the detention, transfer,
treatment, trial, or conditions of confinement of an alien who is
or was detained by the United States and has been determined
by the United States to have been properly detained as an enemy
combatant or is awaiting such determination.’’.
Excerpts from the Dissenting Opinion in Boumediene v. Bush
(2008) by Chief Justice RobertsToday the Court strikes down as
inadequate the most generous set of procedural protections ever
afforded aliens detained by this country as enemy combatants.
The political branches crafted these procedures amidst an
ongoing military conflict, after much careful investigation and
thorough debate. The Court rejects them today out of hand,
without bothering to say what due process rights the detainees
possess, without explaining how the statute fails to vindicate
those rights, and before a single petitioner has even attempted
to avail himself of the law’s operation. And to what effect? The
majority merely replaces a review system designed by the
people’s representatives with a set of shapeless procedures to be
defined by federal courts at some future date. One cannot help
but think, after surveying the modest practical results of the
majority’s ambitious opinion, that this decision is not really

about the detainees at all, but about control of federal polic y
regarding enemy combatants. Comment by Joseph Dwyer:
What was in place was significant. Comment by Joseph Dwyer:
The court has taken the political process out of the hands of the
political branches.
The majority is adamant that the Guantanamo detainees are
entitled to the protections of habeas corpus—its opinion begins
by deciding that question. I regard the issue as a difficult one,
primarily because of the unique and unusual jurisdictional
status of Guantanamo Bay. I nonetheless agree with Justice
Scalia’s analysis of our precedents and the pertinent history of
the writ, and accordingly join his dissent. The important point
for me, however, is that the Court should have resolved these
cases on other grounds. Habeas is most fundamentally a
procedural right, a mechanism for contesting the legality of
executive detention. The critical threshold question in these
cases, prior to any inquiry about the writ’s scope, is whether the
system the political branches designed protects whatever rights
the detainees may possess. If so, there is no need for any
additional process, whether called “habeas” or something else.
In short, the Hamdi plurality concluded that this type of review
would be enough to satisfy due process, even for citizens.
Congress followed the Court’s lead, only to find itself the
victim of a constitutional bait and switch. Hamdi merits scant
attention from the Court—a remarkable omission, as Hamdi
bears directly on the issues before us. The majority attempts to
dismiss Hamdi’s relevance by arguing that because the
availability of §2241 federal habeas was never in doubt in that
case, “the Court had no occasion to define the necessary scope
of habeas review . . . in the context of enemy combatant
detentions.” Hamdi was all about the scope of habeas review in
the context of enemy combatant detentions. The petitioner, an
American citizen held within the United States as an enemy
combatant, invoked the writ to challenge his detention. After “a
careful examination both of the writ … and of the Due Process

Clause,” this Court enunciated the “basic process” the
Constitution entitled Hamdi to expect from a habeas court.
Comment by Joseph Dwyer: Why not continue Hamdi
precedent?For my part, I will assume that any due process rights
petitioners may possess are no greater than those of American
citizens detained as enemy combatants. It is worth noting again
that the Hamdi controlling opinion said the Constitution
guarantees citizen detainees only “basic” procedural rights, and
that the process for securing those rights can “be tailored to
alleviate [the] uncommon potential to burden the Executive at a
time of ongoing military conflict.” The majority, however,
objects that “the procedural protections afforded to the
detainees in the CSRT hearings are … limited.” But the
evidentiary and other limitations the Court complains of reflect
the nature of the issue in contest, namely, the status of aliens
captured by our Armed Forces abroad and alleged to be enemy
combatants. Contrary to the repeated suggestions of the
majority, DTA review need not parallel the habeas privileges
enjoyed by noncombatant American citizens, as set out in. It
need only provide process adequate for noncitizens detained as
alleged combatants. Comment by Joseph Dwyer: Hamdi
precedent for due process rights due to detainees.
What alternative does the Court propose? Allow free access to
classified information and ignore the risk the prisoner may
eventually convey what he learns to parties hostile to this
country, with deadly consequences for those who helped
apprehend the detainee? If the Court can design a better system
for communicating to detainees the substance of any classified
information relevant to their cases, without fatally
compromising national security interests and sources, the
majority should come forward with it. Instead, the majority fobs
that vexing question off on district courts to answer down the
road. Comment by Joseph Dwyer: Problem of giving additional
process to detainees. Majority did not provide any guidance.
So who has won? Not the detainees. The Court’s analysis leaves

them with only the prospect of further litigation to determine
the content of their new habeas right, followed by further
litigation to resolve their particular cases, followed by further
litigation before the D. C. Circuit—where they could have
started had they invoked the DTA procedure. Not Congress,
whose attempt to “determine—through democratic means—how
best” to balance the security of the American people with the
detainees’ liberty interests, has been unceremoniously brushed
aside. Not the Great Writ, whose majesty is hardly enhanced by
its extension to a jurisdictionally quirky outpost, with no
tangible benefit to anyone. Not the rule of law, unless by that is
meant the rule of lawyers, who will now arguably have a greater
role than military and intelligence officials in shaping policy
for alien enemy combatants. And certainly not the American
people, who today lose a bit more control over the conduct of
this Nation’s foreign policy to unelected, politically
unaccountable judges. Comment by Joseph Dwyer: In the
majority's opinion, almost everyone loses.
I respectfully dissent.
Targeted Killing
Minimum Confirmed Strikes
6786
Total Killed
8459 - 12,105
Civilians Killed
769 - 1725
Children Killed
253 - 397

Source: https://www.thebureauinvestigates.com/projects/drone-
war
Obama Drone Strike Guidelines:
https://www.aclu.org/sites/default/files/field_document/presiden
tial_policy_guidance.pdf
Drone Memos:
https://www.theguardian.com/us-news/ng-
interactive/2016/nov/15/drone-memos-documents-president-
power-kill
The Drone Presidency:
https://www.nybooks.com/articles/2016/08/18/the-drone-
presidency/
Targeted Killing:
https://www.brookings.edu/research/targeted-killing-in-u-s-
counterterrorism-strategy-and-law/
Civil Liberties in Wartime - World War II

violated."
wartime?
World War II - American Involvement
● Lend Lease/Cash Carry
● Selective Service and
Conscription Act (1940)
● Smith Act (1940)
● Japanese Aggression → Oil
Embargo
● Pearl Harbor (12/7/1941)
● First War Powers Act (1941)
● Expansion of the federal
government

Anti-Japanese Sentiment
● Yellow Peril
● Asiatic Exclusion League
● Anti-Jap Laundry League
(1908)
● California Alien Land Law
(1913/1920)
● Takao Ozawa v. U.S. (1922)
● “Jap” vs. “Nazi”
“Race Warfare” in the Pacific
● Imperial Japan and believed
superiority
● Rape of Nanking
○ 350,000
● Rapid Japanese Advance
● Japanese barbarity
● Murder and enslavement of
POWs
● Bataan Death March
○ 15,000 Dead
● Kamikaze, Refusal to
Surrender, “Insane Martial

Spirit”
● Battlefield Atrocities
“Race Warfare” in the Pacific
Framing Relocation and Internment
● ONI → Japanese
Espionage/Smuggling Ring
(1935)
● 1939 → Tachibana & Kono
● MAGIC Intercepts:
○ Excerpt
● Niihau Incident
● West Coast Political Pressure
● Presidential Proclamation -
2525
● Executive Order 9066 - Military
Zones (Excerpts)
● Executive Order 9102 - War
Relocation Authorities
● Japanese Internment Bill
● Curfew, Exclusion, & Internment

Itaru Tachibana - 1939
Hirabayashi v. U.S. (1943) - Issues and Decision
● Executive Orders (Federal)
● University of Washington student
● Challenged curfew and relocation
● Constitutional Question → Did the President's executive
orders
and the power delegated to the military authorities discriminate
against Americans and resident aliens of Japanese descent in
violation of the Fifth Amendment?
● Court only considered curfew:
○ Favorable precedent before internment challenge
● Unanimous Decision
Excerpt from the
Munson Report
(October, 1941)
"There is some Japanese problems on the
West Coast, but it has not yet reached a
state in which we should fear them as a
country" concluding that there was "a
remarkable, even extraordinary degree of
loyalty among some of this generally
suspect ethnic group, but there were
some Issei that remained loyal to their
home country, Japan, and its Emperor."

Opposing
Internment →
The Munson and
Ringle Reports
Japanese Relocation and Internment
● Use of 1940 census data (Blocks; names, addresses in
D.C.)
● Second War Powers Act (1942)
● 110,000 - 120,000
○ 70% American born
○ Most longtime residents
● Property Loss
● "relocation centers", "internment camps", and
"concentration camps"
https://www.washingtonpost.com/news/retropolis/wp/2018/04/0
3/secret-use-of-census-info-helped-send-japanese-americans-to-
internment-camps-in-wwii/?utm_term=.c4bc8bde7c4e
Japanese Relocation and Internment - Propaganda
Japanese Internment and Relocation

Japanese Internment and Relocation - Economic Consequences
Japanese Internment and Relocation - Characteristics
● Physical Removal
● Forced sale of homes and businesses
● Harsh living conditions
● Cultural impropriety
● Americanization and forced assimilation
● Impact of otherization
● Eventual:
○ Work Release
○ Military Service
○ Closures (Early 1945)
Legal Challenges - Korematsu v. U.S. (1944)
● Fred Korematsu
● Disobeyed exclusion order
● Arrested, indicted, and convicted
● Contention → Exclusion order/Executive Order 9066
violated the 5th Amendment.
● 6 - 3 Decision
German Internment

● Presidential Proclamations (Alien Enemies Act)
○ 2526
○ 2527
● German Ancestry:
○ Born → 1.2 Million
○ Both Parents → 5 Million
○ One Parent → 6 Million
● 1260 Immediately detained; 254 evicted from coastal regions
● Individual vs. En Masse
● 11,500 Interned
● Internment of people of German ancestry deported from Latin
America
Italian Internment
● Presidential Proclamations (Alien Enemies Act)
○ 2527
● Millions of naturalized citizens
● 695,000 immigrants
● 1800 detained; businessmen, diplomats, maritime workers,
students →
coastal exclusion
● Loyal (initiated naturalization) vs. disloyal?
● Individual vs. en masse → Coastal Differences
● Problem with “Enemy Alien” and Italians

Military Justice - Introduction
● Laws of War:
○ Treaties, Conventions, etc.
○ Geneva, Hague, Red Cross, etc.
● Courts Martial
○ Uniform Code of Military Justice
● Military Tribunals/Military Commission
○ Rules of Procedure→ 1948
○ Military Commissions Act → 2009
○ Military Judge w/ 5 or 12 Members
Law and War
● Laws of War:
○ Between and among nations
○ “Body of laws”
● Articles of War → Uniform Code of Military Justice (1950)
○ Congressional Enactment
■ Desertion, conduct, espionage, etc.
Habeas Corpus → Background
● Magna Carta → 1215
● “That you have the body . . .”
● Right of the accused → Challenge detention
● Imprisonment and cause

● Constitution and individual rights
● 1940s - 1960s:
○ Habeas petitions for state prisoners.
● Who has the power to suspend Habeas Corpus?
The Civil War → An Unprecedented Crisis
● Secession
● Threats to the capital → Maryland
● Early Progress of the War
● Spies, supporters of rebel cause
● Lincoln and the expansion of Executive Power
○ State of Congress
○ Emancipation Proclamation
● Fate of the Union, freedom of millions
Ex Parte Vallandigham (1864)
● Ohio → Former Congressman
● Peace Movement → Copperheads → Re-
Election
● General Order #38 → Speech
● Arrested and tried in Military Tribunal
● Conviction and Commutation (Exile)
● Appeal:
○ Did military tribunal have jurisdiction?
Are military proceedings
Constitutional?

● Decision → Supreme Court has no
jurisdiction over military appeals.
Ex Parte Milligan (1866)
● Habeas Corpus Suspension Act (1863) → Proclamation 94
● Indiana Conspiracy/Plots
● Military District of Indiana
● Charges:
○ Conspiracy against the U.S. government
○ Offering aid and comfort to the Confederates
○ Inciting insurrections
○ Disloyal practices
○ Violation of the laws of war
● Habeas Corpus Claim
● Question → Can civilians be tried by military tribunals?
● Answer → No . . .
World War II - Espionage and Sabotage
● Black Tom Island sabotage (WWI) - 7/30/1916
○ Jersey City Pier
○ German Agents
○ Statue of Liberty Torch
● German declaration of war - 12/11/1941
● Hitler and German Military Intelligence
● Operation Pastorius - June 1942

○ 8 Germans; 2 were American citizens
○ Training
○ U-Boats → LI and Florida
Ex Parte Quirin
● Saboteurs wore German Navy Uniforms
● Initial Coast Guard Stop
● Two saboteurs turn on the rest; FBI claims credit.
● Legacy of Ex Parte Milligan
○ Should the saboteurs be tried in a civilian court or military
tribunal?
○ Was a tribal of the saboteurs by military tribunal
Constitutional?
● Decision - 7/31/1942 → Per Curiam Opinion 10/29/1942
violated."
wartime?
Slide 1Slide 2World War II - American InvolvementAnti-

Japanese SentimentSlide 5“Race Warfare” in the Pacific“Race
Warfare” in the PacificFraming Relocation and InternmentItaru
Tachibana - 1939Hirabayashi v. U.S. (1943) - Issues and
DecisionExcerpt from the Munson Report (October,
1941)Japanese Relocation and InternmentJapanese Relocation
and Internment - PropagandaJapanese Internment and
RelocationJapanese Internment and Relocation - Economic
ConsequencesSlide 16Japanese Internment and Relocation -
CharacteristicsLegal Challenges - Korematsu v. U.S.
(1944)German InternmentItalian InternmentMilitary Justice -
IntroductionLaw and WarHabeas Corpus → BackgroundThe
Civil War → An Unprecedented CrisisEx Parte Vallandigham
(1864)Ex Parte Milligan (1866)World War II - Espionage and
SabotageEx Parte QuirinSlide 29
Civil War & Reconstruction → 1860 -
1877
World War I → 1914 - 1918
1941
World War II → 1941 - 1945

Cold War → 1945 - 1991
1968
Civil Liberties in Wartime - World War I
What do we value as a society? What
are our ideals?
Do we live up to our values/ideals?
What is the impact of war/crisis on a
nation?

If the history of the 14th Amendment has
been a steady march toward a more free
and equal American society, have other
laws followed suit?
violated."
How and why has the status of civil liberties in
wartime evolved?
The Constitution and Military Power
● Article I, Section 8 (Powers of Congress):
○ Congress shall have the power to:
■ Declare war
■ Raise and support armies
■ To make Rules for the Government and Regulation of the
land and naval Forces
● Article I, Section 9 (Limitations on Congress):

○ The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.
The Constitution and Military Power
● Article II (The Executive):
○ The President shall be Commander in Chief of the Army and
Navy of the United States, and of the Militia of the several
States,
when called into the actual Service of the United States;
○ He shall have Power, by and with the Advice and Consent of
the
Senate, to make Treaties, provided two thirds of the Senators
present concur
U.S. Constitution - First Amendment
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the
Government for a redress of grievances.
World War I → American Involvement and
Concerns

● Lusitania (1915)
● Zimmerman Telegram (1917)
● “Safe for democracy . . .”
● Selective Service (1917)
● Expansion of the federal
government
● Committee of Public Information
○ Americanization
○ Coercive Patriotism
○ Pro-War
Concerns (Cont’d.)
● Fears of Communism and Anarchism → Russia
● American Protective League, Slacker Raids
● America’s Foreign-Born Population:
○ 9 Million German-Americans
○ Foreign born and disloyalty?
● Opposition to the war
Concerns (Cont’d.)
● Year Population Percentage of foreign-born population
● 1850 2,031,867 92.2%
● 1860 3,807,062 92.1%
● 1870 4,941,049 88.8%

● 1880 5,751,823 86.2%
● 1890 8,030,347 86.9%
● 1900 8,881,548 86.0%
● 1910 11,810,115 87.4%
● 1920 11,916,048 85.7%
● 1930 11,784,010 83.0%
● 1960 7,256,311 75.0%
● 1970 5,740,891 61.7%
● 1980 5,149,572 39.0%
● 1990 4,350,403 22.9%
World War I → The Espionage Act (1917)
● Restrict anti-war/draft speech
● Postmaster General
● 2000 Charged/Over half convicted
● Disloyalty → Repression
● Focus on “Interference”
● Also, subversion and traditional
espionage.
● Questionable Efficacy
● 1st Red Scare
Schenck v. U.S. (1919) - Issues and Decision
● 1917 - Russian Revolution
● Socialist leaflet distribution
● Socialist/Anarchist
● Urged peaceful draft resistance
● Targeted Servicemen
● Unanimous Decision:

○ Excerpts
World War I → The Sedition Act (1918)
● Alien and Sedition Acts → 1798
○ Virginia and Kentucky
Resolutions
● "disloyal, profane, scurrilous, or
abusive language"
● Flag, government, armed forces
● Amendment to Espionage Act
Debs v. U.S. (1919) - Issues and Decision
● Debs:
○ Socialist
○ IWW
○ 5-Time Candidate
○ Prior arrests
● Anti-Draft/Recruitment Speech & Conviction
● Question → Did Debs' conviction under the Espionage Act of
1917 violate his
First Amendment rights to freedom of speech?
● Unanimous Decision:
○ Excerpts

Abrams v. U.S. (1919) - Issues and Decision
● Leaflets, Manhattan
● Russian Revolution intervention
● Advocate general strike
● Appealed during Debs and
Schenck decisions.
● 7 - 2 Decision:
○ Lower court conviction
upheld.
○ Holmes Dissent
Subsequent Applications of
the Espionage Act
New York Times Co. v. U.S. (1971) - Context
● Context:
○ Vietnam
○ Protest
○ Top secret “history” (1967)
○ Leak
● NY Times and Washington Post publication
● Administration’s response and prior restraint
● Section 793 of the Espionage Act
● Question → Did the Nixon administration's efforts to prevent
the publication of

what it termed "classified information" violate the First
Amendment?
● 6 - 3 Decision
U.S. v. Manning (2013)
● Context:
○ Late 2000s - Iraq and Afghanistan
○ Military challenges
○ Growing public opposition
● Over 500,000 war reports/two videos
● Chelsea Manning:
○ Truth of war
● Wikileaks
● Prosecution:
○ Aiding the enemy?
○ Espionage Conviction
wartime?
Tonight’s Timeframe . . .Slide 2Slide 3Slide 4Slide 5The
Constitution and Military PowerThe Constitution and Military
PowerU.S. Constitution - First AmendmentWorld War I →
American Involvement and ConcernsWorld War I → American
Involvement and Concerns (Cont’d.)World War I → American

Involvement and Concerns (Cont’d.)Slide 12World War I →
The Espionage Act (1917)Schenck v. U.S. (1919) - Issues and
DecisionWorld War I → The Sedition Act (1918)Debs v. U.S.
(1919) - Issues and DecisionAbrams v. U.S. (1919) - Issues and
DecisionSlide 18New York Times Co. v. U.S. (1971) -
ContextU.S. v. Manning (2013)Slide 21
Magic intercept Tokyo to Washington #44 – Jan 30, 1941
Intercept dated January 30, 1941 and noted as translated 2-7-41
Numbered #44
FROM: Tokyo (Matsuoka) TO: Washington (Koshi)
(1) Establish an intelligence organ in the Embassy which will
maintain liaison with private and semi-official intelligence
organs (see my message to Washington #591 and #732 from
New York to Tokyo, both of last year's series). With regard to
this, we are holding discussions with the various circles
involved at the present time.
(2) The focal point of our investigations shall be the
determination of the total strength of the U.S. Our
investigations shall be divided into three general classifications:
political, economic, and military, and definite course of action
shall be mapped out.
(3) Make a survey of all persons or organizations which either
openly or secretly oppose participation in the war.
(4) Make investigations of all antisemitism, communism,
movements of Negroes, and labor movements.
(5) Utilization of U.S. citizens of foreign extraction (other than
Japanese), aliens (other than Japanese), communists, Negroes,
labor union members, and anti-Semites, in carrying out the
investigations described in the preceding paragraph would
undoubtedly bear the best results. These men, moreover, should
have access to governmental establishments, (laboratories?),
governmental organizations of various characters, factories, and
transportation facilities.
(6) Utilization of our "Second Generations" and our resident

nationals. (In view of the fact that if there is any slip in this
phase, our people in the U.S. will be subjected to considerable
persecution, and the utmost caution must be exercised).
(7) In the event of U.S. participation in the war, our intelligence
set-up will be moved to Mexico, making that country the nerve
center of our intelligence net. Therefore, will you bear this in
mind and in anticipation of such an eventuality, set up facilities
for a U.S.-Mexico international intelligence route. This net
which will cover Brazil, Argentina, Chile, and Peru will also be
centered in Mexico.
(8) We shall cooperate with the German and Italian intelligence
organs in the U.S. This phase has been discussed with the
Germans and Italians in Tokyo, and it has been approved.

Executive Order 9066
The President
Executive Order
Authorizing 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 as defined in Section 4, Act of April
20, 1918, 40 Stat. 533, as amended by the Act of November 30,
1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat.
655 (U.S.C., Title 50, Sec. 104);
Now, therefore, by virtue of the authority vested in me as
President of the United States, and Commander in Chief of the
Army and Navy, I hereby authorize and direct the Secretary of
War, and the Military Commanders whom he may from time to
time designate, whenever he or any designated Commander
deems such action necessary or desirable, to prescribe military
areas in such places and of such extent as he or the appropriate
Military Commander may determine, from which any or all
persons may be excluded, and with respect to which, the right of
any person to enter, remain in, or leave shall be subject to
whatever restrictions the Secretary of War or the appropriate
Military Commander may impose in his discretion. The
Secretary of War is hereby authorized to provide for residents
of any such area who are excluded therefrom, such
transportation, food, shelter, and other accommodations as may
be necessary, in the judgment of the Secretary of War or the
said Military Commander, and until other arrangements are
made, to accomplish the purpose of this order. The designation
of military areas in any region or locality shall supersede
designations of prohibited and restricted areas by the Attorney
General under the Proclamations of December 7 and 8, 1941,
and shall supersede the responsibility and authority of the
Attorney General under the said Proclamations in respect of
such prohibited and restricted areas.
I hereby further authorize and direct the Secretary of War and

the said Military Commanders to take such other steps as he or
the appropriate Military Commander may deem advisable to
enforce compliance with the restrictions applicable to each
Military area here in above authorized to be designated,
including the use of Federal troops and other Federal Agencies,
with authority to accept assistance of state and local agencies.
I hereby further authorize and direct all Executive Departments,
independent establishments and other Federal Agencies, to
assist the Secretary of War or the said Military Commanders in
carrying out this Executive Order, including the furnishing of
medical aid, hospitalization, food, clothing, transportation, use
of land, shelter, and other supplies, equipment, utiliti es,
facilities, and services.
This order shall not be construed as modifying or limiting in
any way the authority heretofore granted under Executive Order
No. 8972, dated December 12, 1941, nor shall it be construed as
limiting or modifying the duty and responsibility of the Federal
Bureau of Investigation, with respect to the investigation of
alleged acts of sabotage or the duty and responsibility of the
Attorney General and the Department of Justice under the
Proclamations of December 7 and 8, 1941, prescribing
regulations for the conduct and control of alien enemies, except
as such duty and responsibility is superseded by the designation
of military areas here under.
Franklin D. Roosevelt
The White House,
February 19, 1942.
Excerpts from the Majority Opinion in Hirabayashi v. U.S.
(1942) by Justice Stone
The challenged orders were defense measures for the avowed
purpose of safeguarding the military area in question, at a time
of threatened air raids and invasion by the Japanese forces, from
the danger of sabotage and espionage. As the curfew was made
applicable to citizens residing in the area only if they were of

Japanese ancestry, our inquiry must be whether, in the light of
all the facts and circumstances, there was any substantial basis
for the conclusion, in which Congress and the military
commander united, that the curfew as applied was a protective
measure necessary to meet the threat of sabotage and espionage
which would substantially affect the war effort and which might
reasonably be expected to aid a threatened enemy invasion. The
alternative, which appellant insists must be accepted, is for the
military authorities to impose the curfew on all citizens within
the military area, or on none. In a case of threatened danger
requiring prompt action, it is a choice between inflicting
obviously needless hardship on the many or sitting passive and
unresisting in the presence of the threat. We think that
constitutional government, in time of war, is not so powerless
and does not compel so hard a choice if those charged with the
responsibility of our national defense have reasonable ground
for believing that the threat is real.
Excerpts from the Concurring Opinion in Hirabayashi v. U.S.
(1942) by Justice Murphy
Distinctions based on color and ancestry are utterly inconsistent
with our traditions and ideals. They are at variance with the
principles for which we are now waging war. We cannot close
our eyes to the fact that, for centuries, the Old World has been
torn by racial and religious conflicts and has suffered the worst
kind of anguish because of inequality of treatment for different
groups. There was one law for one and a different law for
another. Nothing is written more firmly into our law than the
compact of the Plymouth voyagers to have just and equal laws.
To say that any group cannot be assimilated is to admit that the
great American experiment has failed, that our way of life has
failed when confronted with the normal attachment of certain
groups to the lands of their forefathers. As a nation, we embrace
many groups, some of them among the oldest settlements in our
midst, which have isolated themselves for religious and cultural

reasons.
Today is the first time, so far as I am aware, that we have
sustained a substantial restriction of the personal liberty of
citizens of the United States based upon the accident of race or
ancestry. Under the curfew order here challenged, no less than
70,000 American citizens have been placed under a special ban
and deprived of their liberty because of their particular racial
inheritance. In this sense, it bears a melancholy resemblance to
the treatment accorded to members of the Jewish race in
Germany and in other parts of Europe. The result is the creation
in this country of two classes of citizens for the purposes of a
critical and perilous hour -- to sanction discrimination between
groups of United States citizens on the basis of ancestry. In my
opinion, this goes to the very brink of constitutional power.
Except under conditions of great emergency, a regulation of this
kind applicable solely to citizens of a particular racial
extraction would not be regarded as in accord with the
requirement of due process of law contained in the Fifth
Amendment. We have consistently held that attempts to apply
regulatory action to particular groups solely on the basis of
racial distinction or classification is not in accordance with due
process of law as prescribed by the Fifth and Fourteenth
Amendments.
It is true that the Fifth Amendment, unlike the Fourteenth,
contains no guarantee of equal protection of the laws. It is also
true that even the guaranty of equal protection of the laws
allows a measure of reasonable classification. It by no means
follows, however, that there may not be discrimination of such
an injurious character in the application of laws as to amount to
a denial of due process of law as that term is used in the Fifth
Amendment. I think that point is dangerously approached when
we have one law for the majority of our citizens and another for
those of a particular racial heritage.

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