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0:56

Supreme Court tends to be very

0:59

deferential. two administrations in the midst

1:01

of war a L A national

1:03

Security Issues, but in some ways

1:06

I think this actually is a

1:08

is a kind of cautionary tale

1:10

about the danger, the catastrophe that

1:13

can result. You know when you

1:15

look at cases like that incarceration

1:17

of the Japanese American citizens, but

1:19

in the disaster, a catastrophe that

1:22

can result when justices are unwilling

1:24

to confront the President and. Who

1:26

appointed them A President that they

1:28

revere Or that president's you know

1:30

supporters are backers are were Political

1:33

Network I'm Jack Goldsmith and this

1:35

is the Lawfare Podcast. December Twenty

1:37

Six Two Thousand and Twenty Three.

1:40

The. supreme court during world war two

1:42

issued some of the most notorious

1:44

opinions and it's history including the

1:46

japanese exclusion case grandma it's who

1:48

vs united states and the nazi

1:50

savage military commission case x party

1:52

kiran for a fresh take on

1:54

these and related cases and a

1:56

broader perspective on the supreme court

1:58

during world war two I

2:00

sat down with Cliff Sloan, a professor

2:03

at Georgetown Law Center and a former

2:05

special envoy for Guantanamo closure, to

2:07

discuss his new book, which is called The Court

2:09

at War, FDR, His

2:12

Justices, and the World They Made. Sloan

2:15

and I discussed how the court's decisions during

2:17

World War II were informed by the very

2:19

close personal bonds of affection that

2:21

most of the justices had with President Roosevelt,

2:24

and by the justices' intimate attachment to

2:27

and involvement with the war effort. We

2:30

also discussed the fascinating internal deliberations

2:32

in Korematsu, Kirin, and other momentous

2:34

cases, and the puzzle of

2:37

why the same court that issued these decisions, also

2:39

during the same period, issued famous

2:42

rights expanding decisions in the

2:44

areas of reproductive freedom, voting rights,

2:46

and freedom of speech. It's

2:49

the Lawfare Podcast, December 26th, The

2:52

Court at War. Cliff,

2:55

your book is called The Court at War. It's

2:57

about the Supreme Court during World War II. World

3:01

War II began for the United States on December

3:03

7th, 1941. I

3:05

suppose we declared war a few days later. And

3:08

then FDR died on April 12th, 1945. So

3:12

the book is really about a three and a half year

3:14

period in the Supreme Court at the kind of height

3:17

of World War II. Who

3:20

were the main justices? It was quite an array

3:22

of characters. Who were the main justices? What

3:25

was their relationship to FDR? So

3:28

there's a very important point that

3:30

this time period that you're talking

3:32

about is also the

3:35

time period of the

3:37

pure Roosevelt Court. Everybody's

3:41

generally familiar with FDR's battles

3:43

with the court in the 1930s and the failed

3:46

court packing plan and the switch

3:48

in time that saved nine where

3:50

one justice was perceived to change

3:52

his position and then the court

3:54

upheld New Deal legislation and regulations.

3:57

But what is less well understood is the

4:00

that by the summer of 1941, FDR had

4:02

appointed seven of

4:06

the nine justices and elevated an A,

4:08

Tarlin Fiskstone, to be chief justice.

4:10

There was only one justice on

4:13

the court, Owen Roberts, who didn't

4:15

owe his position to FDR. And

4:19

it was by far the biggest

4:21

impact on the Supreme Court of

4:23

any president since George Washington. And

4:25

as you mentioned, Jack, it wasn't

4:27

just the number of justices, which

4:29

was overwhelming, but almost all of

4:31

them had very, very close relationships with

4:34

FDR personally. So just to kind of

4:36

get the players out on the table,

4:39

they kind of fall into three groups.

4:42

And the first is the

4:45

Roosevelt appointees who are very

4:47

well-known, Hugo Black, Felix Frankfurter,

4:49

William O. Douglas, and Robert

4:51

Jackson. And the second is

4:54

the group of FDR appointees

4:56

who are not very well-known.

4:59

So that's Stanley Reed, Frank

5:01

Murphy, James Burns. Now,

5:03

Jimmy Burns had been a Senator from South

5:05

Carolina. He was a close legislative ally of

5:08

FDR. He was appointed in the summer of

5:10

1941, but

5:12

he only served on the court until the fall

5:14

of 1942, because in

5:16

the fall of 1942, FDR said, "'Come

5:19

to the White House. "'You'll be

5:21

the assistant president. "'You'll be overseeing

5:24

the wartime economy "'while I focus

5:26

on military matters.'" And so

5:28

then Burns was replaced by the

5:31

last FDR appointee, Wiley Rutledge.

5:34

And then there were two justices

5:36

who were not initially appointed by

5:38

FDR. Harlan Fisk Stone, who was

5:40

appointed to the court in 1925

5:43

by his Amherst College buddy,

5:45

Calvin Coolidge, and then elevated to

5:48

Chief Justice by FDR in

5:50

the summer of 1941. And that was

5:52

very much related to the war, and we

5:54

can talk about that. And finally, Owen Roberts,

5:56

the only one who didn't owe his position

5:59

to him. the

14:00

war, strongly supporting

14:03

FDR's war effort. Just,

14:05

you know, a few

14:07

examples of some justices

14:10

appearing at rallies. There was an I

14:12

Am an American rally in Central Park

14:15

and the featured speaker was Hugo Black

14:17

along with Joe Louis, the boxer who

14:19

was then a private in the Army.

14:22

Jimmy Burns, while he was still on

14:24

the court, addressed a packed stadium in

14:27

Spartanburg, South Carolina. And

14:29

he said that anybody who's criticizing

14:32

the administration is giving aid and

14:34

comfort to the enemy and should

14:36

stop right away. And he

14:38

also said he was confident of

14:40

victory because we have God and

14:43

Russia and time on our side.

14:45

And FDR would give the justices

14:47

informal missions. He secretly

14:49

sent Hugo Black to Birmingham in

14:52

Black's home state of Alabama to explore

14:55

the state of war related industries. He

14:57

very publicly sent Frank Murphy, who, as I

14:59

mentioned, had been mayor of Detroit and Governor

15:01

of Michigan, to Detroit to

15:05

similarly inspect the war effort

15:07

in terms of industry and

15:10

labor. And so Murphy,

15:12

you know, very publicly does this

15:14

investigation, goes to all these industries.

15:17

And of course, Detroit was very

15:19

important as the arsenal of democracy,

15:21

making tanks and jeeps and other

15:24

armaments. And then Murphy delivers a

15:26

national radio address reporting on his

15:28

findings and saying, we

15:30

have to do more. Industry and labor

15:33

both have to step up and do

15:35

more to support the war effort. And

15:38

Murphy actually, in fact, enlisted

15:40

in the military during the course

15:42

of World War II. In the

15:44

summer of 1942, during the

15:47

court summer recess, he secured an

15:49

appointment as a lieutenant colonel

15:51

in the Army. And he was at

15:53

these military bases in

15:55

the South. And he, there

15:57

were newsreels in movie theaters. that

16:00

showed Murphy behind tanks, behind weapons.

16:02

I have a picture of him

16:05

behind the weapon in the book

16:07

and doing all these military maneuvers

16:09

during the day. And then at

16:12

night in the military barracks, reviewing

16:14

cert petitions and other Supreme Court

16:16

documents. And at

16:18

the same time, on some occasions,

16:21

FDR gave them formal assignments. And

16:23

one example of a formal assignment

16:25

was that shortly after Pearl Harbor,

16:29

he appointed Owen Roberts to head

16:31

a commission to investigate what went

16:33

wrong at Pearl Harbor. And so

16:35

Roberts took a two month lead

16:37

from the court. All the other

16:39

members of the commission were very

16:41

high ranking generals and admirals. They

16:44

went to Hawaii for two months. They

16:46

did all sorts of interviews, reviewing documents,

16:48

held public hearings. And then

16:50

Roberts came back to Washington, met one on

16:52

one with FDR for several hours and also

16:55

gave him a written report by the commission,

16:57

which FDR then released publicly.

17:00

And then Roberts had a whole

17:02

series of kind of public appearances

17:04

discussing the commission report. So this

17:07

kind of deep involvement in supporting

17:09

FDR on

17:11

the war effort off of the

17:14

bench was very, very extensive. There's

17:17

one more story that I thought

17:19

was extraordinary. And that was, Churchill

17:21

gave a speech in December of 1941 and

17:24

just tell the story about the

17:27

victory sign. Cause that was really

17:29

emblematic of the court's role in

17:32

seeing themselves as central to the war effort. Yes,

17:35

absolutely. And December 26th, 1941,

17:37

Winston Churchill addressed a

17:41

joint session of Congress. He had come to

17:43

DC earlier that week in

17:46

a surprise dramatic visit. He was

17:48

staying at the White House. And

17:50

so he addresses this joint session of

17:52

Congress and the justices are all in

17:54

the front row. And

17:57

Churchill gives this rousing eloquent.

18:00

Churchillian speech and he

18:02

pauses and he looks out

18:04

at the crowd and he gives his

18:06

famous V for victory sign with the

18:09

two fingers raised and

18:11

in the front row very prominently

18:13

Chief Justice Harlan Fisk Stone lists

18:16

his fingers in a V for

18:18

victory sign in response and

18:20

that exchange between the Prime Minister

18:23

and the Chief Justice was prominently

18:25

reported in newspapers throughout the country

18:27

and the meaning of it was

18:30

very clear the court was in

18:32

the fight and if I might check there's one

18:34

other anecdote from around

18:36

that time that I think you

18:38

know also highlights that that very

18:41

important point and this was

18:43

the day after Pearl Harbor and this was

18:45

told to me by a gentleman who just

18:47

turned 100 and at the time he was

18:50

his job was as a library aide

18:52

in the Supreme Court he was 18

18:54

years old and so December 8th 1941

18:58

he shows up at the Supreme Court for

19:00

his job and he's doing what a library

19:02

aide does dropping off books picking up books

19:05

and suddenly through the front door of the

19:07

Supreme Court he sees this group

19:09

of heavily armed U.S. soldiers with their

19:11

weapons drawn come rushing into the Supreme

19:14

Court and they take up positions at

19:16

the windows and at the doors and

19:18

on the roof and the

19:20

reason was because later that day at

19:22

noon FDR was going to

19:24

be addressing a joint session of Congress

19:27

this is his famous day of infamy

19:29

speech and again the justices attended

19:31

they actually adjourned court early so that

19:33

they could be there they're all in

19:35

the front row but the reason for

19:38

the soldiers was that this was part

19:40

of an expanded security perimeter around the

19:42

Capitol right across the street from the

19:44

Supreme Court this

19:46

was only one day after

19:48

this devastating surprise attack but

19:51

again what you see quite

19:53

vividly and quite literally

19:56

is the war invading the quiet precincts

19:58

of the Supreme Court Let.

20:01

Me ask you about this because this

20:03

background informs the criticisms you're gonna make

20:05

of the corridor. Basically a caving to

20:07

serve ft ours interests in a whole

20:10

bunch of important cases that are. Today.

20:13

So seen as disreputable. But.

20:16

Why? Were the justices during this is there

20:18

Is there case to be made that this war

20:20

was differ from many other war except perhaps a

20:23

civil war. We. Were engaged

20:25

in total war. It. Was

20:27

the whole country had been

20:29

mobilized, the threat was very

20:32

serious. And. And it

20:34

did. Just says we're not acting normally. I don't

20:36

believe they acted this way. I'm were one. They

20:38

didn't act as ran the Civil War either. So.

20:41

They perceive themselves that as as you

20:43

said in that the as they were

20:45

involved in the war effort. But.

20:48

Is that are they to be criticized for

20:50

that Is that to have been expected given

20:52

the steaks and given the context where they

20:55

doing that because they were close Roosevelt or

20:57

would they have done that? And in the

20:59

event if any president has them to do

21:02

so, I'm trying to set the context rate

21:04

and understand the context for some other later

21:06

decisions rights. And by the way, one point

21:08

I just one make clear on a you

21:11

know if I talk about this more A

21:13

bet M is there's a duality to the

21:15

court in World War Two and a It

21:17

and. It all relate civil War. It's

21:20

really a tale of two quarts.

21:22

It's the best courts in the

21:24

worst of courts and and and

21:26

they both sides of it relate

21:28

to the to the war but

21:30

and the worst a quartz site

21:32

where they you know capitulated to

21:34

Ft and refuse to confront them

21:36

and the I think there were

21:38

a couple things going on and

21:40

so first of all absolutely like

21:42

every American they were completely you

21:44

know I'm immersed in the war

21:46

of the in support for. the

21:48

war is felt this very personal

21:50

stake you know and five of

21:52

the justices had songs serving in

21:54

the military a six had a

21:56

son in law in the military

21:58

as i mentioned frank Murphy, went

22:00

them all one better, and actually served

22:02

in the military. The Frankfurters didn't have

22:05

any children, but during a

22:07

significant part of the war, they had

22:09

three English children staying with them. And

22:11

the reason they were there was because

22:14

an English lawyer who had been a

22:16

protege of Frankfurter at Harvard Law School,

22:18

he and his wife sent the children

22:20

to stay with the Frankfurters, because they

22:22

were concerned about the bombing that was

22:24

going on in London

22:26

and throughout England. And the Frankfurters,

22:28

you know, delighted in the children,

22:30

and they took them to

22:33

see FDR, who also sort of reveled

22:35

in their antics. And

22:38

in addition, in their daily lives,

22:40

they were subject to the bizarre,

22:43

Byzantine world of rationing

22:45

and shortages and price controls

22:48

and civil defense of all

22:50

Americans, and had many sort

22:52

of distinctive experiences with regard

22:55

to that. So absolutely, like

22:57

every American during the

22:59

war, they were very much kind of caught

23:01

up in the war effort. But I do

23:04

think there is this additional important dimension to

23:06

it, which is that they have these singularly

23:09

close relationships with FDR. And

23:11

of course, and

23:13

that is distinctive. And, you know, of

23:16

course, the Supreme Court tends to

23:18

be very deferential to administrations in

23:20

the midst of war and on

23:23

national security issues. But in some

23:25

ways, I think this actually is

23:27

a kind of cautionary tale about

23:30

the danger, the catastrophe that can

23:33

result, you know, when you look

23:35

at cases like the incarceration of

23:37

the Japanese-American citizens, but the

23:40

disaster and catastrophe that can result when

23:43

justices are unwilling to confront the

23:46

president who appointed them a president

23:48

that they revere, or that president's

23:50

supporters or backers or political networks.

23:53

So there absolutely

23:55

was a lot connected with the war

23:57

itself, but it was a lot. of

28:00

American law. And in the opinion, Douglas

28:02

very pointedly says that we know that

28:04

quote, in evil or reckless hands, forced

28:07

sterilization can lead to the disappearance of

28:09

entire categories of people. And everybody knew

28:11

exactly what and who he was talking

28:13

about. The following year in 1943, the

28:16

Supreme Court decides the

28:18

very famous case of West Virginia Board of

28:21

Education versus Barnett's, the

28:23

very eloquent opinion by

28:25

Justice Robert Jackson, striking

28:28

down at the height of the war,

28:30

this mandatory flag salute that had

28:32

been adopted in a wave of

28:35

patriotic fervor after Pearl

28:37

Harbor. And they did it on behalf

28:39

of what was then a reviled and

28:41

despised religious minority, the Jehovah's Witnesses. But

28:44

again, the war was very important because in

28:46

Jackson's opinion, he says, this

28:48

is what makes us different from

28:50

what he says, quote, our totalitarian

28:53

enemies. They try to

28:55

compel uniformity of belief. In our

28:57

country, under our constitutional democracy, no

28:59

government official can tell you what

29:02

you have to think

29:04

or believe. And Jackson even points

29:06

out that the mandatory flag salute,

29:09

which had the children standing with

29:11

their hands raised to the flag,

29:14

it was very, very similar to the

29:16

Nazi salute. And at the time the

29:18

decision was announced and

29:20

while the case was pending, it was very

29:22

much seen in this context of

29:24

the contrast with the Nazis. And then

29:26

again, in 1944, the next year, in

29:30

Smith versus Allwright, the Supreme Court in

29:33

an opinion by Stanley Reed strikes down

29:35

the all white democratic primary in Texas

29:37

and throughout the South. And again, it's

29:39

very much a part of the context

29:42

of the case and how it's discussed

29:44

and how it's understood that we are

29:46

fighting a regime premised on racial supremacy.

29:49

And this was at a time

29:51

when there was great sort of

29:53

civil rights, ferment and turmoil in

29:55

the country. The African-American community had

29:57

adopted what it called the double

29:59

view. campaign, victory over fascism abroad

30:01

and racism at home. And Smith

30:04

v. Allwright actually was Thurgood Marshall's

30:06

first big victory in a case

30:08

that he argued in the Supreme

30:10

Court. But again, with regard to

30:12

all of these, the Court is

30:15

recognizing and protecting and expanding

30:17

constitutional rights and civil liberties

30:20

and directly doing it as

30:23

part of the identity of our

30:25

constitutional democracy compared to the fascists,

30:27

the totalitarian, the Nazis that were

30:30

fighting. So even though those cases

30:32

don't explicitly relate to the

30:34

war itself, the war is very much

30:36

a part of it. Why

30:39

wasn't that same

30:41

sentiment driving the justices

30:43

in the three Japanese

30:47

discrimination cases, Hirabayashi, Endo

30:50

and Korematsu? And

30:52

these cases were in some instances just weeks apart.

30:55

And it seems obvious that if

30:58

the we're not like them logic

31:00

was driving some cases, why wasn't

31:03

it driving other cases? Because

31:06

the difference between cases

31:09

like Skinner and Barnett and Smith

31:11

v. Allwright on the one hand

31:14

and the anti-Japanese cases on the

31:16

other is that in the cases

31:18

where they protected and recognized

31:21

constitutional rights and liberties, they didn't have

31:23

to cross FDR and they didn't have

31:26

to cross him on a war issue.

31:29

And of course, that was fundamental

31:31

in the anti-Japanese cases that it

31:33

flowed from an executive order that

31:36

FDR personally had issued.

31:39

His administration was vigorously

31:41

defending it, saying it was necessary

31:43

for the war effort. And

31:46

so that's really the critical difference

31:48

in my view between the decisions

31:50

that are the best of court and the decisions

31:53

that are the worst of courts. Good.

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That's aura.com/safety to learn more and

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activate the 14-day trial period. Just.

32:48

Like little bit about the Japanese cases. One

32:51

of the things that. Your

32:53

book reminded me of is that it's still

32:56

Roosevelt's roles and attitude and all. This is

32:58

still kind of an inscrutable to me. It

33:00

didn't seem like a big deal to me.

33:02

He didn't seem to it didn't seem like

33:04

it was a big deal to him. He

33:07

didn't seem that he. Rang his

33:09

hands over it very much and it

33:11

didn't seem I use particularly engaged in

33:13

it too many of his subordinates especially

33:15

the Just Apartment where but for Roosevelt,

33:18

the decision to issue the Executive order

33:20

seemed. He. Just didn't seem

33:22

terribly bothered by it. Is that correct? Yes,

33:25

It is that is correct

33:27

and you know if he

33:29

he he issue the executive

33:31

order and allowed the it's

33:33

policy to go forward really

33:35

for two reasons. One, there

33:38

was a push from the

33:40

War Department that this was

33:42

necessary for the war effort

33:44

on the west coast. On

33:46

this get out of persecution

33:49

and incarceration of Japanese American

33:51

citizens and lawful. a

33:53

resident japanese non citizens and it

33:55

it was really driven by there

33:58

was a very and race general

34:01

on the West Coast, but there were

34:03

also people at the top tier of

34:05

the War Department who were pushing it

34:07

very aggressively and saying is that is

34:10

that DeWitt? Yes, General

34:12

DeWitt, yes exactly. Who by the

34:14

way knew Black and Douglas personally,

34:17

but in any case General DeWitt was pushing

34:19

this very aggressively, but then there are people

34:21

in the War Department, I mean you know

34:23

John J. McCloy, you know

34:25

who had renowned as the chairman of

34:28

the Board of the American Establishment in

34:30

the post-war world really played a kind

34:32

of shameful role in this and he

34:34

was one of the top officials in

34:36

the War Department and then they got

34:39

the Secretary of War Simpson behind it

34:41

even though he initially had

34:43

doubts about it. So one very important

34:45

element is that the War Department was

34:47

pushing it. There were young lawyers

34:49

at the Justice Department who were very

34:51

much against it and the Attorney General

34:54

Francis Biddle was against

34:56

it but sort of tepidly because

34:58

he didn't want to get on

35:00

the wrong side of FDR in

35:02

the War Department and so while

35:04

he advised against it as a

35:06

policy matter, crucially he never said

35:08

that it would pose legal issues

35:10

or be unconstitutional and he deliberately

35:14

refrained from doing that

35:17

and he basically you know didn't want to

35:19

stick his neck

35:21

out that far. So on the one hand

35:23

you've got this push in the administration from

35:26

the War Department and

35:28

on the other hand it

35:30

had become a real political

35:32

problem for FDR because you

35:34

know after an initial sort

35:36

of you know quiet and

35:38

kind of sane and rational

35:40

period on

35:42

the West Coast, this had become a very

35:46

hot political potato and the

35:48

all of the political figures

35:51

from the West, from both parties

35:54

were very much pushing for a

35:56

very harsh anti-Japanese

35:59

position, including the

36:01

Attorney General of California, who

36:03

was then running for governor,

36:05

Earl Warren, the great liberal

36:07

chief justice. Warren embraced it.

36:09

Warren's opponent in the gubernatorial

36:11

election, the incumbent governor embraced

36:14

it. But the congressional delegation from

36:16

California was being very vehement that

36:19

the administration had to take action.

36:21

Now, interestingly, one thing I didn't

36:23

realize, there were also words that

36:25

were some economic interests, the

36:28

sort of California growers

36:30

and farmers were very resentful of

36:33

the success that the Japanese

36:35

farmers had had in

36:38

California. And they were very explicit that that

36:40

was part of their motivation. We want them

36:42

out. They've been taking all our land and

36:44

they've been taking our business. We can run

36:46

those farms and we don't want them ever

36:48

to come back. But in any case,

36:50

it had become a tremendous kind of

36:53

political controversy. And FDR's

36:55

view, unfortunately, because

36:57

obviously this persecution of

37:00

American citizens for

37:03

no reason other than the country their parents

37:05

came from is a deep stain on the

37:07

country and on the Supreme Court. But I

37:09

think FDR's view and some of the people

37:11

who dealt with him during this

37:13

period expressed this later was, look, I've got

37:16

a war to win over

37:18

in Europe and in the Pacific. And

37:20

if the military is telling me

37:23

they wanna do this, this is

37:25

a huge political problem. So I'm just

37:27

gonna let it go forward. I

37:32

don't want there to be some politically

37:34

disruptive issue now. And I also don't

37:36

wanna overrule the War Department. And in

37:38

fact, in 1944, when

37:41

a number of top officials in

37:43

the government were telling FDR, we

37:46

no longer need to have this, he

37:48

said, I don't wanna do anything till after the election

37:51

because he did not wanna risk it

37:53

becoming a political issue in the election.

37:55

So he deliberately delayed kind of phasing

37:57

out the incarceration.

38:00

camps, the internment camps, until after the

38:02

election. So there was that political dimension

38:04

to it for FDR as well. So

38:07

one of the other amazing, and

38:09

really there are so many connections between

38:12

the court and the war effort

38:14

and indeed in stirring up anti-Japanese

38:17

sentiment was Owen

38:19

Roberts, as you alluded to

38:21

earlier, Justice Roberts was the

38:23

person who wrote the report about what

38:26

happened at Pearl Harbor. And

38:28

there were sentences in his report that

38:31

suggested that there were Japanese Americans in

38:33

Hawaii who were serving Japan's

38:36

intelligent interests. And that was one

38:38

of the, I think

38:40

three things you mentioned that really stirred up

38:43

the anxiety about the intelligence exposure from

38:46

Japanese Americans on the West Coast.

38:48

Yeah, absolutely. The Roberts report

38:51

was one of the matches

38:53

that lit the flame of

38:57

this kind of hysteria that

38:59

took hold on the West Coast. And

39:01

so that was sort

39:03

of directly from Roberts.

39:05

And Stimson had recorded

39:08

it in his diary that at a

39:10

kind of key point as he was

39:12

reflecting on the policy, he had a

39:14

private conversation with Roberts and Roberts was

39:16

concerned about the espionage threat

39:19

that he had seen in Hawaii, which

39:22

actually was debunked by others, including

39:24

Jayed Gerhuver, who was opposed to

39:26

this program, and who said, look,

39:28

the FBI, we are handling it,

39:30

we can't handle it, you don't

39:32

need to incarcerate

39:34

everybody. But the Roberts report

39:36

definitely played an important role.

39:39

But interestingly, by

39:41

the time Korematsu comes around, Roberts

39:43

is one of the three dissenters

39:45

at that point. So, yeah, but

39:48

yeah, no, the

39:50

Roberts Pearl Harbor Commission

39:52

report definitely played

39:54

a very important role. And

39:57

you talk about this famous report, this

39:59

intelligence intelligence report by this lower level person,

40:01

I believe, in the Defense Department, suggesting that

40:03

there was no real intelligence threat. You

40:06

just said that Hoover himself was one of

40:08

the people most vehemently opposed. Was

40:11

there nothing to the claim

40:13

that there was an intelligence threat on the

40:15

West Coast posed by Japanese Americans? I

40:18

mean, there were some important people who said

40:20

that there was no serious intelligence threat or it was

40:22

a threat that could be handled without

40:24

having to exclude or to

40:26

have curfews and the like. But

40:29

was there just no evidence on the other side?

40:31

Was it pure racism? Was DeWitt just a racist

40:34

top and bottom? Or

40:36

was there, were there

40:38

genuine concerns about threats to the

40:41

West Coast and they were

40:43

just exaggerated and the remedy was way overbroad? I

40:45

just couldn't figure out which one of those stories

40:47

was the right story. Well,

40:50

you know, I think there were elements

40:52

of both actually. And let me explain

40:54

why I say that because, you know,

40:56

two of the principal

40:58

justifications that DeWitt and

41:00

the War Department gave

41:03

were one, that there was evidence of

41:05

shore to ship signaling. I'll come back

41:08

to that. And two,

41:10

that there simply wasn't time

41:12

to separate the loyal from

41:14

the disloyal. And

41:17

there certainly could be a

41:19

lot of disloyal

41:22

Japanese Americans or

41:24

Japanese resident non-citizens. And there

41:27

simply wasn't time and no way

41:29

to separate the loyal from the

41:31

disloyal. OK, so as to those

41:33

two justifications, one of the really

41:35

shocking things about the series of

41:37

anti-Japanese cases is that

41:40

the government, the Justice Department

41:42

and the War Department had

41:44

information that directly belied and

41:46

contradicted both of those. So

41:48

with regard to the shore

41:50

to ship signaling, which again,

41:52

feature prominently in DeWitt's report,

41:54

which the War Department relied

41:56

on, when

41:58

the Justice department looked into

42:01

it as the cases were pending

42:03

in the Supreme Court. It turned

42:05

out that first of all the

42:07

Federal Communications Commission had looked into

42:10

this extensively and said there was

42:12

absolutely nothing to it and advised

42:14

DeWitt of that, you know, long

42:16

before he relied on it as

42:19

his justification and that was just

42:21

factually wrong. But the government deliberately

42:23

decided not to include

42:26

that in the submission to the

42:29

Supreme Court and there was a

42:31

big debate in the Justice Department

42:33

but ultimately the Solicitor General Charles

42:35

Fahey decided not

42:37

to reveal that to

42:39

the court in both in the briefs

42:41

and in the argument. And then similarly

42:43

this sort of, you know, very

42:46

major justification that the government relied

42:48

on that there simply wasn't time

42:50

to determine who was disloyal and

42:52

who is disloyal. And yes, you

42:54

know, some of them might be

42:56

loyal but there was no way

42:58

to have a procedure and that's

43:00

where there was this report within

43:03

the War Department by

43:05

a kind of Naval Intelligence

43:08

Officer that yes it was

43:10

very possible. We sort of,

43:12

the government knew who were

43:14

the suspicious characters or the

43:16

likely disloyal characters and J. Edgar Hoover

43:18

very strongly backed that up. He said,

43:21

you know, we have this extensive program,

43:23

we had it before the war, we

43:25

continued it during the war, they had

43:27

rounded up, you know, kind of more,

43:29

I think more than a thousand people

43:31

based on their surveillance and he said

43:33

we've got this under control, we've

43:35

got a good sense of who's loyal and disloyal.

43:37

And once again the government did

43:40

not present that to the Supreme Court

43:43

even while arguing as a

43:45

principal justification that there's just

43:48

not time for it. So, you

43:50

know, that all goes to the point

43:52

of there not being the

43:55

threat that was there. And but the

43:57

reason I said both Jack is because

43:59

to the extent there was a threat,

44:02

both the FBI and a

44:04

sort of major figure in

44:06

naval intelligence felt that they

44:08

had adequate means to address

44:10

it. So there was

44:12

both the kind of contradiction of

44:14

the underlying rationales as well as

44:17

systems in place that could

44:19

be much more targeted to any threat

44:21

that would emerge. And I just want

44:23

to emphasize one other point. So

44:26

it's really, again, we're talking

44:28

about how shameful these anti-Japanese decisions

44:30

are. It's also, in my view,

44:32

very shameful that the government did

44:34

not reveal this information to the

44:36

Supreme Court. Now, none of that

44:39

gets the Supreme Court off the

44:41

hook because even... That

44:43

was my next question. Yeah. Because even

44:45

on the record as it went to

44:47

the court, it was

44:49

a debacle. I mean, these

44:51

are... Korematsu, rightly, in

44:53

my opinion, is viewed as one

44:55

of the worst decisions the court

44:58

has ever issued up there with

45:00

Dred Scott and Plessy versus Ferguson.

45:02

So it doesn't get the court

45:05

off the hook, but it does

45:07

add still another very

45:09

troubling and disturbing dimension. One

45:12

other point I just want to mention. So the

45:14

first of the big anti-Japanese

45:17

decisions, Hirabayashi, which upheld a

45:19

criminal curfew targeted at Japanese

45:21

American citizens and upheld convictions

45:23

under it. The court was unanimous and

45:25

Frank Murphy was very troubled and up

45:27

until almost the last day, he was

45:29

going to write a dissent, but he

45:31

didn't want to be the lone dissenter.

45:33

So he wrote a concurrence that expressed

45:35

a lot of skepticism. And when

45:37

the court decided Korematsu the following year,

45:40

it was a 6-3 decision. And Jackson

45:42

and Murphy and Roberts dissented and

45:45

Black wrote the majority opinion. Some

45:47

of the people involved

45:50

in the case and

45:52

from different positions later expressed

45:54

great regret. Douglas expressed

45:57

very great regret about his

45:59

vote. with the majority, but Black

46:02

was completely unrepentant. To

46:04

his dying day, he

46:06

said that it

46:09

was justified and that you can't

46:11

tell the

46:13

difference among Japanese people and so

46:15

it was necessary. And so

46:17

there was an interesting contrast in how

46:20

the justices later looked back on the

46:22

opinion. Let me talk about some

46:24

different issues sort of outside

46:26

the court that are so interesting in

46:28

your book. You have this amazing chapter about

46:32

Felix Frankfurter being visited by

46:34

Jan Karski who informed

46:36

him about what was going on in the

46:39

Holocaust. And just tell

46:41

the exchange because it's kind of amazing

46:43

and tell us what the significance is. Yeah,

46:46

so, you know, Karski, as

46:49

the people may be aware, was

46:51

a very interesting

46:54

and heroic figure and he had been

46:56

working in the Polish underground and

46:59

he had actually both gone

47:02

into the Warsaw ghetto and into

47:04

a concentration camp and then had

47:08

managed through sort of elaborate maneuvers both

47:10

to go in and to get out.

47:12

But he was a first-hand witness to

47:15

the horrors of the Warsaw

47:17

ghetto and the concentration camp and what was

47:19

going on in the Holocaust

47:21

at a time when there was some

47:24

information but his eyewitness

47:26

testimony was very,

47:28

very powerful and

47:30

added tremendously to the picture. And

47:33

he was sent to the U.S.

47:35

to rally support

47:38

for Poland. The government

47:40

in exile was concerned about what

47:43

the Soviet Union wanted to do

47:45

with Poland. But he also very

47:47

much wanted to carry the message

47:50

about what was happening and to

47:52

ask for dramatic action. And he

47:54

had promised people in the Jewish

47:57

community in Warsaw and those

47:59

he had that he would do this. And

48:02

so when he arrives in Washington, there's

48:04

a dinner with the

48:07

ambassador of the Polish government

48:09

in exile, Karski, Frankfurter,

48:11

and two other prominent Jewish

48:13

Americans in government. And Karski

48:15

is talking about the whole

48:17

picture. And then Frankfurter says

48:19

he wants to stay afterwards.

48:21

And it's just Karski and

48:23

the ambassador and Frankfurter.

48:25

And Frankfurter says to Karski, he says,

48:28

I am Jewish, I want to hear

48:30

what you have to say. And Frankfurter

48:32

had been very involved in trying to

48:34

rally efforts against the Nazis

48:36

in the 1930s. He

48:38

had personally gotten his uncle

48:41

out of a Nazi prison

48:44

in Vienna. Frankfurter had

48:46

been born in Vienna. He'd come to the

48:48

US as a child. And

48:50

so Karski then goes on in

48:53

detail about what he's seen in

48:55

the concentration camp and also in

48:58

the Warsaw ghetto. And

49:00

it's just extremely vivid accounts

49:03

that Karski gives. And

49:06

he finishes and Frankfurter looks at him and he

49:09

says, I cannot believe you. And

49:12

the Polish ambassador says, Felix, what are

49:14

you talking about? Our government stands by

49:16

this man. How can you say he's

49:18

lying? And Frankfurter says, I did

49:21

not say he was lying. I said,

49:23

I cannot believe him. And he

49:25

gets up and he walks out. And

49:28

there's no record that Frankfurter

49:30

ever did anything about this.

49:32

And Frankfurter kept a

49:34

diary during this period about

49:37

his full range of policy

49:39

activities with all of the

49:41

different agencies and departments

49:43

of the government. He never mentions

49:45

this meeting. It's unexplained what he

49:47

means when he says, I cannot

49:49

believe you. But I think a kind

49:52

of, a reasonable inference

49:54

is just that the enormity of

49:57

what he was hearing from Karski.

50:00

was something that if

50:02

he believed him, if he fully took

50:04

that in, he would have

50:07

to take very dramatic

50:09

and drastic actions. And

50:12

for all of his very

50:14

laudable efforts to rally

50:16

support against the Nazis both

50:19

before and after the war,

50:21

that was a step he was unwilling to

50:23

make. And by the way, Karski also

50:26

met with other American officials. He

50:28

met with FDR and kind of

50:31

scarred by his experience with Frankfurter.

50:33

He didn't go into detail with

50:36

FDR about the concentration camp that

50:38

he had witnessed or the Warsaw

50:40

ghetto. He did talk about that

50:42

there was a very real threat of

50:45

the extermination of the three,

50:48

more than three million Jews in Poland. It

50:50

was the largest Jewish community and that they

50:52

were going to be wiped out by the

50:54

Nazis. And FDR sort of very

50:57

abstractly said, you tell your people

50:59

we're going to win this war.

51:01

And he sort of gave him

51:04

those reassuring words at a

51:06

very general level. And Karski talks

51:08

about how he was so awed and dazzled

51:10

by FDR. He walked out of the room

51:12

backwards. He didn't want to turn his back

51:14

on this great American president. But he later

51:17

realized FDR had said nothing

51:19

about the Jews. Now, there

51:21

were others who thought that maybe it did have

51:24

an impact on FDR and there

51:26

were some efforts that happened with

51:28

the government. But with Frankfurter, it's

51:30

just very striking and very haunting

51:33

that all he said after that

51:35

very vivid testimony was, I cannot

51:37

believe you. I didn't really

51:39

appreciate why it was – this is

51:41

a different topic – why Roosevelt

51:44

wanted Douglas to be his running mate

51:46

in 1944. What

51:49

was the political appeal of Douglas? I mean, why

51:51

did FDR think this was a good idea politically?

51:53

It didn't seem to make any sense to me

51:55

politically. So I think there

51:57

were two reasons that FDR was a

51:59

very good leader. was very much drawn

52:01

to Douglas. First, he actually

52:04

thought that Douglas would have great

52:06

political appeal. Again, the way he

52:08

carried himself in public, he

52:11

thought that he would have a

52:14

sort of dynamic presence. He

52:16

thought that his life story of

52:18

growing up very humble in the

52:20

Pacific Northwest would be

52:23

very appealing. FDR

52:26

thought that he was a good judge of

52:28

political talent. At

52:31

one point, Robert Jackson was being

52:33

considered for political office,

52:35

possibly to run for governor of New

52:37

York. And FDR liked Jackson

52:39

very much, but he privately said to

52:42

others that he wasn't sure if he

52:44

was ruthless enough to

52:46

succeed. But with Douglas,

52:48

he saw somebody who he thought would have

52:51

great political appeal. He thought he was

52:53

shrewd. But the other thing, which was

52:55

important, is that Wallace

52:58

was very much

53:00

a hero to the liberals

53:03

and labor in

53:06

the Democratic coalition. And

53:08

so there was a political

53:10

risk to FDR in dumping

53:12

Wallace. And he wanted

53:14

to dump Wallace for various reasons. Wallace was

53:16

sort of very erratic. It had come out

53:18

in the 1940 election that

53:21

he consulted a mystic. He

53:23

seemed kind of unreliable to

53:25

FDR. He would go off

53:27

and do his own things.

53:29

The political pros deeply disliked

53:31

Wallace. But FDR was concerned

53:33

about kind of alienating that wing

53:35

of the party, the liberals and

53:37

labor. And he thought that

53:40

Douglas would be viewed very, very

53:42

favorably by that wing of the

53:44

party. So that's another reason that

53:46

he was very much drawn to

53:48

Douglas. And it's interesting, throughout this

53:51

period, FDR,

53:53

who is famous for operating

53:55

at many different levels and

53:57

keeping everybody off balance and-

54:00

and sort of steering his way. He

54:03

kept a number of candidates in

54:05

play, including Jimmy Burns, who

54:07

is the most conservative candidate, Douglas,

54:10

who was viewed as a kind of liberal

54:12

champion, and Harry Truman, who was kind of

54:15

in the middle. And at

54:18

various times, those sort of three

54:20

leading contenders, FDR

54:22

is both kind of playing them all

54:24

off against each other. And he's also

54:26

kind of giving assurances that

54:29

that person is the one that he really

54:31

favors. And he even did that with Wallace.

54:33

I mean, he said to Wallace that

54:36

he wasn't going to endure some. And again,

54:38

he was going to nominally leave it up

54:40

to the convention. But he did

54:42

tell Wallace, oh, I hope we

54:45

can keep the same team together. And he

54:47

had an agreement with Wallace that he said,

54:49

well, if he was a delegate, he personally

54:51

would vote for Wallace. But all the delegates

54:53

were free to vote their conscience. And then

54:55

all of FDR's top aides at

54:58

his direction and with his blessing were working

55:00

very hard to make sure that Wallace wasn't

55:02

the candidate. But I do think that that

55:04

was an important part of it for

55:06

FDR also, was that one thing he didn't want

55:08

to do was kind of

55:11

create a breach with the kind of

55:13

liberal labor wing of the party. And

55:15

he viewed Douglas as a great candidate

55:17

for them. Reading your

55:19

book and your criticisms

55:21

of the court and the executive

55:24

branch for basically caving

55:26

to the exaggerated pressures of the war

55:29

and violating the Constitution in doing so,

55:32

it made me think of Lincoln and

55:34

Lincoln's violations of the Constitution during

55:36

his total war, especially his. He

55:40

violated the Constitution in a number of

55:42

respects, but perhaps most notably suspending

55:45

the writ of habeas corpus when he probably

55:47

didn't have the authority to do so, ignoring

55:49

an order from the Chief Justice that

55:52

he needed to release a prisoner he had

55:55

detained illegally, raising armies and

55:57

borrowing money on the credit of the United States,

55:59

which is. supposed to be Congress's job. You

56:02

seem very unsparing

56:05

in cutting the court and

56:07

the executive branch slack and

56:09

I'm not saying you should I'm just trying to figure out your position

56:12

given the just the

56:14

extraordinary unprecedented situation that you World War

56:17

two presented and the threat to

56:19

the nation that presented do you

56:21

feel the same way about Lincoln? Well

56:26

let's see I I

56:28

think there is a

56:30

history both of you know presidents

56:32

taking extraordinary actions in

56:34

wartime and frequently I

56:37

mean not true

56:40

during in Lincoln's time

56:42

there was a different dynamic with Tawny

56:44

but infrequently the court you know being

56:46

kind of very deferential to that but

56:48

first of all so

56:50

recognizing that background you know as

56:52

I was mentioning before first of all

56:54

I think this is a cautionary tale and I also think

56:56

you have to look at the particular issues because I think

56:59

really when you're

57:01

looking at the incarceration and

57:04

persecution of American citizens

57:06

again based on nothing other than

57:08

their ancestry I mean that is

57:10

something that is in an

57:14

entirely different category I think

57:17

and so I don't think you can just

57:20

sort of paint with a broad

57:22

brush that kind of all wartime

57:24

actions you know sort of fall

57:27

under the under the same rubric

57:29

I think this was such in

57:32

a an astounding action

57:34

and really a kind of tragic

57:36

action is that the Roosevelt

57:39

administration and the

57:42

Supreme Court upholding it really do deserve

57:44

a lot of criticism and I mean

57:47

I think the court was wrong and

57:49

unanimously upholding the curfew by the time

57:51

of Korematsu as we talked about there

57:53

were three of the justices who had

57:56

concluded against it and so I

57:58

actually don't hesitate to for a second

58:01

in condemning both the administration

58:04

and the Supreme Court. No, but I

58:06

agree. No, I agree. I'm just wondering

58:09

whether you feel the same way about Lincoln. And

58:11

there was not just the Japanese cases.

58:14

There was Kirin, which

58:17

is much closer to what Lincoln did. And

58:19

you're very critical of Kirin. I'm

58:21

just trying to figure out

58:23

your theory of extra-constitutional action

58:26

during total war, whether you think it's

58:28

just always to be regretted and resisted,

58:30

or there are gradations. I

58:33

think it is especially important to

58:36

uphold the Constitution in

58:39

times of war and national security, because

58:41

I think that

58:43

there is the great temptation, because of

58:47

the importance of the issues, to say,

58:49

well, it doesn't

58:52

apply here. And that's when I actually

58:54

do think it needs to

58:56

be applied and observed with

58:59

a great deal of care

59:01

and commitment. So I would say, kind

59:04

of across the board, that I don't

59:06

think war and national security are

59:08

a justification for violating the

59:10

Constitution. And in fact, to

59:13

the contrary, I think that

59:15

they should be red flags to

59:18

make sure that we're being especially

59:20

vigilant in upholding the Constitution. OK,

59:23

here's my last question. You were

59:25

President Obama's special envoy for closing

59:27

Gitmo, I think. Yes. So this

59:29

is a two-part question. One,

59:31

that must have influenced

59:34

the writing of this book, I assume. And two,

59:36

but tell me

59:38

so. And two, I wonder

59:40

what you think of Hamdi and

59:42

Bumeti and Hamdan and those cases

59:44

that in the day seemed like

59:47

all things that's pretty big victories for civil

59:49

liberties. Yes. And yet, here

59:51

we are with Gitmo still open. And

59:54

those precedents, I think 20 years later,

59:58

as I see them, basically. for

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