Federal Authority in Wartime

Kermit Roosevelt on America’s History of Illegal Detention

In light of recent news about Donald Trump’s proposal for a Muslim registry, and other controversial issues surrounding national security, we are running this piece, originally published on mullhollandbooks.com.

We look to the past to understand the present. In 2007, when newspapers highlighted the illegal detentions at Guantanamo and the extent of federal authority in wartime, author Kermit Roosevelt thought back to World War II—specifically, the internment of Japanese-Americans on American soil. This dark period of our country’s history informs Allegiance, Roosevelt’s sophisticated legal thriller from Regan Arts, which lands in bookstore on August 25th. How could our government have supported illegal detentions not once, but twice? Read on for Roosevelt’s take.

In 2007, two years after the publication of my first novel (In the Shadow of the Law), my editor said to me that he wanted my next one to be set in the Supreme Court. I told him I wasn’t sure I could do it. I’d love to write about the Court, but I didn’t want anyone to think I was revealing secrets from my time working there. (I clerked for Justice Souter in 1999-2000, and he’s a very private person.) My editor said, “No problem! Set it ten years in the future when there are nine new Justices.”

That also seemed like an unpromising idea to me, because it would require me to invent nine new Justices and predict the pressing legal issues of a decade hence. I told my wife about the dilemma, and she had a simple answer: set it in the past.

And that seemed like a great idea. No one would think I was writing about the current Court, and instead of inventing nine new Justices I could just research them—something my day job as a law professor has made me quite familiar with. Also, of course, setting the novel in the past would let me scan the whole history of the Court for an era and a set of cases with relevance to the present day. So I started looking…

What I was thinking about in 2007 was the response to 9/11, and more particularly the Guantanamo detentions. I had just recently received a call from a tax lawyer (more on that later) asking me to serve as a constitutional law consultant on a Guantanamo case, and I’d accepted. So I wanted to write something about what we do in times of national insecurity.

The parallels, at a high level of generality, were obvious. There was a shocking attack, striking us in a way we didn’t think possible. There was a President expanding the power of the federal government, asserting he could do whatever was necessary to protect the nation. There were Supreme Court cases about the limits of governmental authority in wartime.

So I thought that mostly what I would be doing was taking these broad parallels and layering current concerns onto a roughly similar history. And I did some of that. I have Supreme Court Justices and other government figures as significant characters in the book. Much of their dialogue is true to life—I read biographies, autobiographies, diaries, and correspondence—but some of it is taken from recent events. “We should look forward, not back.” “We shouldn’t criminalize policy differences or condemn actions taken in good faith to protect the nation.” “You have to remember what it was like then.” “We feared another attack.” Those are contemporary lines about the CIA torture program, but they fit very easily into the mouths of people discussing the detention of Japanese-Americans. (That program, which uprooted over 100,000 mostly birthright citizens, ended up being a large part of Allegiance.)

What surprised me as I went deeper into the research and writing, though, was how precise the parallels were. Immediately after the Pearl Harbor attack, a government lawyer named Karl Bendetsen spent several sleepless days writing memos about what the government could do in response, including the removal and detention program—just as John Yoo, in the Office of Legal Counsel, spent the days after 9/11 writing memos analyzing Guantanamo detention and interrogation techniques. When President Bush issued an executive order creating military tribunals to try terrorism suspects (which the Supreme Court would eventually hold unconstitutional), he copied, word for word, an executive order from Franklin Roosevelt creating a military tribunal to try eight Nazi saboteurs who had come ashore from submarines on the East Coast in the summer of 1942. When Roosevelt gave those saboteurs military lawyers to defend them before that tribunal, he gave them tax experts, thinking, no doubt, that tax lawyers would be unsuited to courtroom defense. And when the Bush administration began planning for the trials of terrorism suspects, it again took a page from FDR’s playbook. It activated tax lawyer reservists to serve as defense counsel—that’s why the call I fielded in 2007 came from a tax lawyer. (A side note: both the Roosevelt and the Bush administrations seem to have underestimated the defense lawyers, who proved both capable and devoted to their task.)

There was also, in both cases, a substantial amount of dissent within the government—internal opposition to Guantanamo detention and torture, in the post-9/11 world, and opposition to the removal and detention program in World War II. Relatedly, there were struggles over the litigation of Supreme Court cases—and in both cases, questionable conduct by the government in making its case to the Court. In 1944, government lawyers presented to the Court claims of disloyal behavior by Japanese-Americans—signal lights to Japanese submarines and shore-to-ship radio transmissions—that they knew were false. In 2004, when the government argued that no judicial supervision of the detention of terrorism suspects was needed, Justice Ginsburg asked a question about the possibility of abuse: “Suppose the executive says, mild torture, we think, will help get this information. Some systems do that to get information.” Assistant Solicitor General Paul Clement responded promptly. “Our executive doesn’t.”

The parallels are interesting in their own right, but the big question is why they exist. Why do we do similar things over and over again? That’s what I was trying to explore in the novel. I tried to get at those questions by telling the story of someone who starts out very trusting—an insider, someone who has nothing to fear from the government and can’t imagine it would do wrong—and comes to doubt everything he’s assumed. My hero, my narrator, is a guy from Philadelphia named Cash Harrison. He’s in law school when Pearl Harbor is attacked; he wants to join up, but he fails the physical. Then he gets a chance to clerk for Justice Hugo Black on the Supreme Court, and he goes to Washington. He’s clerking during one of the Japanese American internment cases, and then when his clerkship ends he stays in DC and works for the Justice Department. That’s in order to unravel a mystery, which is my non-factual thriller plot. (My legal plot is on the whole scrupulously historically accurate.) He ends up representing the government and defending the detention program before the Supreme Court. And he starts having doubts about what he’s doing.

The developmental process I was trying to show there was in part the process of disillusionment with the government, which is something I went through myself in the years after 9/11. But perhaps more importantly, it’s the growth of empathy: the expansion of the set of people who are considered worth caring about, the people who count. FDR’s Attorney General Francis Biddle used the phrase “the compass of sympathy”—he said, “My mother raised me to be gallant, which to her meant protecting one’s people. I hope to have enlarged the compass of my sympathy.” (I liked that phrase so much I considered it as the title for the novel, but eventually Allegiance won out.) The growth of empathy is important because what goes wrong in times of national insecurity is a failure of empathy, a failure to count people’s interests equally. With respect to the internment, the government’s position was that most of the detainees were doubtless loyal. But some might not be, and it was impossible to sort the loyal from the disloyal, so it was reasonable to send them all away. That was a hardship for the loyal people, but it was worth it.

It was worth it, that is, in terms of balancing the burden on the innocents against the benefit to America in terms of increasing the security of the West Coast. Now, one problem with that calculus was that it overestimated the benefit—there really wasn’t a problem of disloyalty, so the security gain was illusory. But there was also a problem in underestimating the burden—or rather, discounting it because they didn’t care about the Japanese American population, these people who seemed so different. Had we been talking about Italian-Americans, or German-Americans, the balancing would have come out differently, as of course it did: there was no mass detention of those populations.

Put this way, the internment decision has the form of a basic moral dilemma: when is it okay to hurt some people to help others? Rereading Allegiance recently, I saw that one thing I was doing was running that question over and over in different situations. It has different answers in different circumstances, and it’s not always clear what’s the right one. But one thing is constant: you get it wrong if you don’t care about the people you’re hurting.

Kermit Roosevelt, finalist for the 2016 Harper Lee Prize, is a professor of constitutional law at the University of Pennsylvania Law School and a former Supreme Court clerk. His first novel, In the Shadow of the Law, was a national campus bestseller, won the Philadelphia Athenaeum Literary Award, and was selected as a Christian Science Monitor Best Book of the Year.