Case Study on "Johnson v. Eisentrager 339 U.S. 763 (1950)"

Case Study 5 pages (2000 words) Sources: 3

[EXCERPT] . . . .

Johnson v. Eisentrager 339 U.S. 763 (1950).

Retrieved October 5, 2011 from Findlaw website: http://laws.findlaw.com/us/339/763.html

Facts: On May 8, 1945 Germany engaged in an unconditional surrender, which obligated the forces under its control to cease hostilities against Allied forces. The Respondents, nonresident enemy aliens, were captured in China by the United States Army and tried and convicted in China for violating the laws of war. These charges stemmed from them continuing hostilities against the Allied forces after Germany's unconditional surrender. Respondents were then transported to American-occupied Germany, and imprisoned there by the Army. They were never within the territorial jurisdiction of any American civil court, nor where they ever in the actual United States. Respondents filed suit, claiming that their trial, conviction, and imprisonment violated the U.S. Constitution, specifically Articles I and III and the Fifth Amendment, as well as U.S. law, and provisions of the Geneva Convention. They petitioned the District Court for the District of Columbia for a writ of habeas corpus.

Issues: Does a nonresident enemy alien have access to U.S. courts in wartime? Do nonresident enemy aliens, captured and imprisoned abroad, have a right to a writ of habeas corpus in a court of the United States? Does the Constitution confer a right or personal security or immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States? Does the petition in this case allege any facts showing a lack of jurisdiction in the military authorities to accuse, try and condemn these prisoners or that they acted in excess of their lawful powers? Is there any basis in this case for invoking federal judicial power?

Rule: First, the Court examined whether U.S. law required extending constitutional protections to non-resident aliens. 50 U.S.C.S. § 21 specifically provides that "Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety" (50 U.S.C.S. § 21). What this law makes clear is that the federal government is not in any way required to treat aliens, even resident aliens, as citizens, during any time of war.

Examining U.S. law, the Court determined that U.S. law does not abolish the distinctions between citizens and aliens, nor between aliens of friendly and enemy allegiance, nor between resident enemy aliens who have submitted themselves to our laws and nonresident enemy aliens who at all have times have remained with, and adhered to, enemy governments. 339 U.S. 763, 769 (1950). While it is true that resident aliens have been granted constitutional protections in the past, the Court looked at those scenarios and determined that when resident aliens have been given constitutional protections in the past, the Court has made it clear that it was the aliens' presence within the U.S.'s territorial jurisdiction that gave the judiciary power to grant them those protections. 339 U.S. 763, 771 (1950). In fact, the Court reasoned that executive power over enemy aliens without going through litigation is essential to wartime security. 339 U.S. 763, 774 (1950). Furthermore, this executive power is extensive, because a resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a "declared" war exists. Courts will entertain his plea for freedom from executive custody only to ascertain the existence of a state of war and whether he is an alien enemy. Once the court has determined that it does have jurisdiction, it will not inquire into other issues as to his internment. 339 U.S. 763, 775 (1950). Nonresident enemy aliens have fewer rights than resident enemy aliens; a nonresident enemy alien, especially one who has remained in the service of the enemy, does not have even qualified access to our courts. 339 U.S. 763, 776 (1950).

Furthermore, the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States. 339 U.S. 763, 771-785 (1950). The Court disagreed with Respondents' assertions that term "any person" in the Fifth Amendment extended its protection to alien enemies everywhere in the world engaged in hostilities against us. 339 U.S. 763, 782-783 (1950). In fact, the Court reasoned that the jurisdiction of military authorities, during or following hostilities, to punish those guilty of offenses against the laws of war is long-established. 339 U.S. 763, 786 (1950). Moreover, the Court looked at the President's function as Commander-in-Chief. Despite the system of checks and balances, the Court determined that it is not the function of the Judiciary to entertain private litigation - even by a citizen - which challenges the legality, wisdom or propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region. 339 U.S. 763, 789 (1950).

Finally, the Court looked at applicable international law. It stated that Article 60 of the Geneva Convention, requiring that notice of trial of prisoners of war be given to the protecting power, is inapplicable to trials for war crimes committed before capture. 339 U.S. 763, 789-90 (1950). The Court likewise stated that Article 63 of the Geneva Convention, requiring trial of prisoners of war "by the same courts and according to the same procedure as in the case of persons belonging to the armed forces of the detaining Power," is likewise inapplicable to trials for war crimes committed before capture. 339 U.S. 763, 790 (1950).

Analysis: In a "nation of laws," the Constitution is the figurative sun in the legal universe. However, the Constitution is not fixed. Its interpretation is shaped by the beliefs and motivations of the time, so that behavior that is considered constitutional at one time may be barred by that same Constitution at another time. Homeland security is one issue that is vulnerable to public policy considerations, and the public is much more likely to support more restrictive homeland security policies during wartime than during times of peace. 50 U.S.C.S. § 21 specifically authorizes the federal government treating resident aliens as hostile during the time of war. The Court looked at the background of litigation, laws, and constitutional history of issues with regards to resident enemy aliens to determine the rights of nonresident enemy aliens. First, the Court differentiated between resident and non-resident aliens, because resident aliens have submitted themselves to U.S. laws. As a result, the Court suggested that submission to those laws also carried with it the right to protection by the laws, so that resident aliens were only protected by the courts because of their presence within the United States. Furthermore, the Court correctly pointed out that the Executive branch has retained power over enemy aliens, whether resident or non-resident during times of war. It would be absurd to suggest that non-resident aliens would have greater protection under the Constitution than resident-aliens, and 50 U.S.C.S. § 21 specifically gives the President the power to arrest, inter, and deport resident enemy aliens, as long as there is a state of war and a person is an alien enemy, regardless of whether that individual actually poses a threat to the United States. Respondents did pose an actual threat to the United States. They were enemy aliens who had remained in service of the enemy and acted against the United States. Moreover, they had acted against the U.S. The Court correctly determined that these Respondents, who had never subjected themselves to U.S. laws, could not avail themselves of the protections of those same laws.

The Court then examined whether the nonresident enemy aliens had a right to a writ of habeas corpus in a U.S. Court. First, the Constitution does provide very specific due process protections for U.S. citizens. However, it does not confer the same rights on non-citizens, and has no power to confer those rights on non-citizens living outside of the United States. Respondents could not fall under the jurisdiction of a federal court, because… READ MORE

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