Conor Friedersdorf, a writer at The Atlantic, has been digging around in some opinions from the Office of Legal Counsel in the '30s and '40s and today publishes a memo from May of 1942 in which Oscar Cox opines on whether the Executive has the authority to declare a targeted sort of martial law that would allow the removal of American citizens of Japanese ancestry in Hawaii to the mainland and, once on the mainland, their imprisonment.
In the memo, Cox hedges quite a bit, advises against even deciding the question, floats less damaging ideas, and ultimately concludes only that it's "possible" that the Executive has the power under discussion.
Friedersdorf characterizes the memo as "chilling" evidence that "[w]ar footing has warped our thinking for too long."
I see it pretty differently. (To be clear: I don't quibble with Friedersdorf's normative claim; I just don't think this memo is very good evidence of it.)
It should be noted up front that the legal theory under discussion in the memo is not the theory used to evict Japanese Americans from their homes along the West Coast and to detain them in camps in the interior. What's under discussion here is the creation of a new and specific kind of martial law targeting American citizens in Hawaii.
Martial law was never the basis for what we have come to know as the "Japanese American internment." So the memo Friedersdorf has found doesn't really have anything to do with the reality of the episode that Friedersdorf says it illuminates.
Friedersdorf (kind of) acknowledges this, but suggests that the memo is somehow revealing of the overall mindset of government lawyers at the time.
If it does reveal such an overall mindset, I find that mindset more refreshing than chilling.
This is not the memo of a lawyer eager to do what he imagines to be the President's bidding, or looking to use the label of "war" to support an executive power grab. (Cf. Yoo, John.)
Cox begins by urging that the legal question need not even be decided because the military is not acting in a way that implicates it. More importantly, he cites as a reason for avoiding decision the risk that the legal principle, once established, "might be extended or abused." (Cf. Justice Jackson, dissenting in Korematsu: "The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.") I say "bravo" to Cox for his caution.
Cox then moves on to address head-on the legality of an order declaring martial law specifically as to a group of people defined racially -- and he comes down against it.
He then addresses the legality of suspending the writ of habeas corpus against a racially defined group -- and while acknoweldging the President's power to do this, he advises against it.
Finally, he ranges far beyond the question he's been asked to volunteer that if someone makes the decision that Japanese Americans from Hawaii must be removed to the mainland, they should not be confined in camps but instead simply excluded from coastal zones where acts of subversion would be most damaging.
I rather like this memorandum. I would hold it up as an example of creative lawyering against the excesses of war, not in support of them. I would like to think that if I'd been in OLC in 1942, I would have had the courage to draft this memorandum in this way.