KC Johnson

National Security and Civil Liberties

Makeup quiz today

Fred Korematsu

Fred Korematsu

Klarman, From Jim Crow to Civil Rights, 171-235. Plus excerpts from two key national security/civil liberties cases of World War II and the early Cold War.

Finally, today is our first moot court (Youngstown v. Sawyer); immediately below are excerpts from the decision syllabus and the key concurring opinion (Jackson):


Youngstown Sheet & Tube Co. v. Sawyer


Argued: May 12-13, 1952June 2, 1952 [*] — Decided:

To avert a nationwide strike of steel workers in April 1952, which he believed would jeopardize national defense, the President issued an Executive Order directing the Secretary of Commerce to seize and operate most of the steel mills. The Order was not based upon any specific statutory authority, but was based generally upon all powers vested in the President by the Constitution and laws of the United States and as President of the United States and Commander in Chief of the Armed Forces. The Secretary issued an order seizing the steel mills and directing their presidents to operate them as operating managers for the United States in accordance with his regulations and directions. The President promptly reported these events to Congress; but Congress took no action. It had provided other methods of dealing with such situations, and had refused to authorize governmental seizures of property to settle labor disputes. The steel companies sued the Secretary in a Federal District Court, praying for a declaratory judgment and injunctive relief. The District Court issued a preliminary injunction, which the Court of Appeals stayed.


1. Although this case has proceeded no further than the preliminary injunction stage, it is ripe for determination of the constitutional validity of the Executive Order on the record presented.

(a) Under prior decisions of this Court, there is doubt as to the right to recover in the Court of Claims on account of properties unlawfully taken by government officials for public use.

(b) Seizure and governmental operation of these going businesses were bound to result in many present and future damages of such nature as to be difficult, if not incapable, of measurement. 

2. The Executive Order was not authorized by the Constitution or laws of the United States, and it cannot stand.

(a) There is no statute which expressly or impliedly authorizes the President to take possession of this property as he did here.

(b) In its consideration of the Taft-Hartley Act in 1947, Congress refused to authorize governmental seizures of property as a method of preventing work stoppages and settling labor disputes.

(c) Authority of the President to issue such an order in the circumstances of this case cannot be implied from the aggregate of his powers under Article II of the Constitution.

(d) The Order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed Forces.

(e) Nor can the Order be sustained because of the several provisions of Article II which grant executive power to the President.

(f) The power here sought to be exercised is the lawmaking power, which the Constitution vests in the Congress alone, in both good and bad times.

(g) Even if it be true that other Presidents have taken possession of private business enterprises without congressional authority in order to settle labor disputes, Congress has not thereby lost its exclusive constitutional authority to make the laws necessary and proper to carry out all powers vested by the Constitution “in the Government of the United States, or any Department or Officer thereof.”


excerpts, Jackson concurrance:

The actual art of governing under our Constitution does not, and cannot, conform to judicial definitions of the power of any of its branches based on isolated clauses, or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling  the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.


U.S. Supreme Court


Decided Dec. 18, 1944.

Mr. Justice BLACK delivered the opinion of the Court.

The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a ‘Military Area’, contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner’s loyalty to the United States. The Circuit Court of Appeals affirmed, and the importance of the constitutional question involved caused us to grant certiorari.

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.

. . .

Exclusion Order No. 34, which the petitioner knowingly and admittedly violated was one of a number of military orders and proclamations, all of which were substantially based upon Executive Order No. 9066, 7 Fed.Reg. 1407. That order, issued after we were at war with Japan, declared that ‘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. …’

One of the series of orders and proclamations, a curfew order, which like the exclusion order here was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences from 8 p.m. to 6 a.m. As is the case with the exclusion order here, that prior curfew order was designed as a ‘protection against espionage and against sabotage.’ In Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, we sustained a conviction obtained for violation of the curfew order. The Hirabayashi conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage.

The 1942 Act was attacked in the Hirabayashi case as an unconstitutional delegation of power; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities and of the President, as Commander in Chief of the Army; and finally that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.

In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did. True, exclusion from the area in which one’s home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas.

In this case the petitioner challenges the assumptions upon which we rested our conclusions in the Hirabayashi case. He also urges that by May 1942, when Order No. 34 was promulgated, all danger of Japanese invasion of the West Coast had disappeared. After careful consideration of these contentions we are compelled to reject them.

Here, as in the Hirabayashi case, supra, 320 U.S. at page 99, 63 S.Ct. at page 1385, ‘… we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.’

Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.

We uphold the exclusion order as of the time it was made and when the petitioner violated it. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory  exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.

[Black then discusses the specifics of the order.]

It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers-and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies-we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders-as inevitably it must-determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot-by availing ourselves of the calm perspective of hindsight-now say that at that time these actions were unjustified.


Mr. Justice FRANKFURTER, concurring.

. . .

The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is ‘the power to wage war successfully.’ Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as ‘an unconstitutional order’ is to suffuse a part of the Constitution with an atmosphere of unconstitutionality. The respective spheres of action of military authorities and of judges are of course very different. But within their sphere, military authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs. ‘The war power of the United States, like its other powers … is subject to applicable constitutional limitations.’ To recognize that military orders are ‘reasonably expedient military precautions’ in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialetic subtleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war. If a military order such as that under review does not transcend the means appropriate for conducting war, such action by the military is as constitutional as would be any authorized action by the Interstate Commerce Commission within the limits of the constitutional power to regulate commerce. And being an exercise of the war power explicitly granted by the Constitution for safeguarding the national life by prosecuting war effectively, I find nothing in the Constitution which denies to Congress the power to enforce such a valid military order by making its violation an offense triable in the civil courts. To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours.

In addition to Murphy, Justices Roberts and Jackson dissented.

Mr. Justice MURPHY, dissenting.

This exclusion of ‘all persons of Japanese ancestry, both alien and non-alien,’ from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over ‘the very brink of constitutional power’ and falls into the ugly abyss of racism.

In dealing with matters relating to the prosecution and progress of a war, we must accord great respect and consideration to the judgments of the military authorities who are on the scene and who have full knowledge of the military facts. The scope of their discretion must, as a matter of necessity and common sense, be wide. And their judgments ought not to be overruled lightly by those whose training and duties ill-equip them to deal intelligently with matters so vital to the physical security of the nation.

At the same time, however, it is essential that there be definite limits to military discretion, especially where martial law has not been declared. Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support. Thus, like 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. ‘What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.’

The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so ‘immediate, imminent, and impending’ as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger. Civilian Exclusion Order No. 34, banishing from a prescribed area of the Pacific Coast ‘all persons of Japanese ancestry, both alien and non-alien,’ clearly does not meet that test. Being an obvious racial discrimination, the order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment. It further deprives these individuals of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely. In excommunicating them without benefit of hearings, this order also deprives them of all their constitutional rights to procedural due process. Yet no reasonable relation to an ‘immediate, imminent, and impending’ public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law.

It must be conceded that the military and naval situation in the spring of 1942 was such as to generate a very real fear of invasion of the Pacific Coast, accompanied by fears of sabotage and espionage in that area. The military command was therefore justified in adopting all reasonable means necessary to combat these dangers. In adjudging the military action taken in light of the then apparent dangers, we must not erect too high or too meticulous standards; it is necessary only that the action have some reasonable relation to the removal of the dangers of invasion, sabotage and espionage. But the exclusion, either temporarily or permanently, of all persons with Japanese blood in their veins has no such reasonable relation. And that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways. It is difficult to believe that reason, logic or experience could be marshaled in support of such an assumption.

That this forced exclusion was the result in good measure of this erroneous assumption of racial guilt rather than bona fide military necessity is evidenced by the Commanding General’s Final Report on the evacuation from the Pacific Coast area. In it he refers to all individuals of Japanese descent as ‘subversive,’ as belonging to ‘an enemy race’ whose ‘racial strains are undiluted,’ and as constituting ‘over 112,000 potential enemies … at large today’ along the Pacific Coast. In support of this blanket condemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that such individuals were generally disloyal, or had generally so conducted themselves in this area as to constitute a special menace to defense installations or war industries, or had otherwise by their behavior furnished reasonable ground for their exclusion as a group.

Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds not  ordinarily within the realm of expert military judgment, supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence. Individuals of Japanese ancestry are condemned because they are said to be ‘a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion.’  They are claimed to be given to ’emperor worshipping ceremonies’ and to ‘dual citizenship.’ Japanese language schools and allegedly pro-Japanese organizations are cited as evidence of possible group disloyalty, together with facts as to  certain persons being educated and residing at length in Japan.  It is intimated that many of these individuals deliberately resided ‘adjacent to strategic points,’ thus enabling them ‘to carry into execution a tremendous program of sabotage on a mass scale should any considerable number of them have been inclined to do so.’ The need for protective custody is also asserted. The report refers without identity to ‘numerous incidents of violence’ as well as to other admittedly unverified or cumulative incidents. From this, plus certain other events not shown to have been connected with the Japanese Americans, it is concluded that the ‘situation was fraught with danger to the Japanese population itself’ and that the general public ‘was ready to take matters into its own hands.’  Finally, it is intimated, though not directly  charged or proved, that persons of Japanese ancestry were responsible for three minor isolated shellings and bombings of the Pacific Coast area, as well as for unidentified radio transmissions and night signaling.

The main reasons relied upon by those responsible for the forced evacuation, therefore, do not prove a reasonable relation between the group characteristics of Japanese Americans and the dangers of invasion, sabotage and espionage. The reasons appear, instead, to be largely an accumulation of much of the misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices-the same people who have been among the foremost advocates of the evacuation. A military judgment based upon such racial and sociological considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations. Especially is this so when every charge relative to race, religion, culture, geographical location, and legal and economic status has been substantially discredited by independent studies made by experts in these matters.

The military necessity which is essential to the validity of the evacuation order thus resolves itself into a few intimations that certain individuals actively aided the enemy, from which it is inferred that the entire group of Japanese Americans could not be trusted to be or remain loyal to the United States. No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian and even more pioneer stock in our country. But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy. To give constitutional sanction to that inference in this case, however well- intentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow.  No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry. It is asserted merely that the loyalties of this group ‘were unknown and time was of the essence.’ Yet nearly four months elapsed after Pearl Harbor before the first exclusion order was issued; nearly eight months went by until the last order was issued; and the last of these ‘subversive’ persons was not actually removed until almost eleven months had elapsed. Leisure and deliberation seem to have been more of the essence than speed. And the fact that conditions were not such as to warrant a declaration of martial law adds strength to the belief that the factors of time and military necessity were not as urgent as they have been represented to be.

Moreover, there was no adequate proof that the Federal Bureau of Investigation and the military and naval intelligence services did not have the espionage and sabotage situation well in hand during this long period. Nor is there any denial of the fact that not one person of Japanese ancestry was accused or convicted of espionage or sabotage after Pearl Harbor while they were still free, a fact which is some evidence of the loyalty of the vast majority of these individuals and of the effectiveness of the established methods of combating these evils. It seems incredible that under these circumstances it would have been impossible to hold loyalty hearings for the mere 112,000 persons involved- or at least for the 70,000 American citizens-especially when a large part of this number represented children and elderly men and women. Any inconvenience that may have accompanied an attempt to conform to procedural due process cannot be said to justify violations of constitutional rights of individuals.

I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.





    June 18, 1953, Argued; June 19, 1953, Decided

    SYLLABUS: The Rosenbergs were convicted and sentenced to death for conspiring to violate the Espionage Act of 1917 by communicating to a foreign government, in wartime, secret atomic and other military information. The overt acts relating to atomic secrets occurred before enactment of the Atomic Energy Act of 1946; but other aspects of the conspiracy continued into 1950. The Court of Appeals affirmed the convictions, and this Court denied certiorari and rehearing. Thereafter, several unsuccessful collateral attacks on the sentences were made in the lower courts, and reviews of the decisions thereon were sought in this Court. After disposing, in effect, of all such collateral attacks then pending in the courts and denying a further stay, this Court adjourned the October Term, 1952. At a Special Term on June 15, 1953, the Court denied a motion for leave to file an original petition for a writ of habeas corpus and for a stay, and again adjourned. Thereafter, counsel for the Rosenbergs applied to MR. JUSTICE DOUGLAS for a stay; but he denied it, since they raised questions already considered by the Court. Counsel who had not been retained by the Rosenbergs but who represented a “next friend” applied to MR. JUSTICE DOUGLAS for a stay and a writ of habeas corpus, contending that the Atomic Energy Act of 1946 rendered the District Court powerless in this case to impose the death penalty under the Espionage Act of 1917. On June 17, 1953, MR. JUSTICE DOUGLAS denied a writ of habeas corpus but granted a stay, effective until the applicability of the Atomic Energy Act could be determined in the lower courts. The Attorney General petitioned this Court to convene in Special Term and to vacate the stay. Held: The stay granted by MR. JUSTICE DOUGLAS is vacated.


    This stay was granted upon such legal grounds that this Court cannot allow it to stand as the basis upon which lower courts must conduct further long-drawn proceedings.

    The sole ground stated was that the sentence may be governed by the Atomic Energy Act of August 1, 1946, instead of by the earlier Espionage Act. The crime here involved was commenced June 6, 1944. This was more than two years before the Atomic Energy Act was passed. All overt acts relating to atomic energy on which the Government relies took place as early as January 1945.

    The Constitution, Art. I, @ 9, prohibits passage of any ex post facto Act. If Congress had tried in 1946 to make transactions of 1944 and 1945 offenses, we would have been obliged to set such an Act aside. To open the door to retroactive criminal statutes would rightly be regarded as a most serious blow to one of the civil liberties protected by our Constitution. Yet the sole ground of this stay is that the Atomic Energy Act may have retrospective application to conspiracies in which the only overt acts were committed before that statute was enacted.

    We join in the opinion by MR. JUSTICE CLARK and agree that the Atomic Energy Act does not, by text or intention, supersede the earlier Espionage Act. It does not purport to repeal the earlier Act, nor afford any grounds for spelling out a repeal by implication. Each Act is complete in itself and each has its own reason for existence and field of operation. Certainly prosecution, conviction and sentence under the law in existence at the time of the overt acts are not improper. It is obvious that an attempt to prosecute under the later Act would in all probability fail.

    This stay is not and could not be based upon any doubt that a legal conviction was had under the Espionage Act. Application here for review of the Court of Appeals decision affirming the conviction was refused, 344 U.S. 838, and rehearing later denied, 344 U.S. 889.

    Later, responsible and authorized counsel raised, among other issues, questions as to the sentence, and an application was made for stay until they could be heard. The application was referred to the full Court, with the recommendation that the full Court hold immediate hearing and as an institution make a prompt and final disposition of all questions. This was supported by four Justices and failed for want of one more, MR. JUSTICE DOUGLAS recording his view that “there would be no end served by hearing oral argument on the motion for a stay.” 345 U.S. 989.

    Thus, after being in some form before this Court over nine months, the merits of all questions raised by the Rosenbergs’ counsel had been passed upon, or foreclosed by denials. However, on this application we have heard and decided (since it had been the ground for granting the stay) a new contention, despite the irregular manner in which it was originally presented.

    This is an important procedural matter of which we disapprove. The stay was granted solely on the petition of one Edelman, who sought to appear as “next friend” of the Rosenbergs. Of course, there is power to allow such an appearance, under circumstances such as incapacity of the prisoner or isolation from counsel, which make it appropriate to enable the Court to hear a prisoner’s case. But in these circumstances the order which grants Edelman standing further to litigate this case in the lower courts cannot be justified.

    Edelman is a stranger to the Rosenbergs and to their case. His intervention was unauthorized by them and originally opposed by their counsel. What may be Edelman’s purpose in getting himself into this litigation is not explained, although inquiry was made at the bar. It does not appear that his own record is entirely clear or that he would be a helpful or chosen champion. See Edelman v. California, 344 U.S. 357.

    The attorneys who appear for Edelman tell us that for two months they tried to get the authorized counsel for the Rosenbergs to raise this issue but were refused. They also inform us that they have eleven more points to present hereafter, although the authorized counsel do not appear to have approved such issues.

    The Rosenbergs throughout have had able and zealous counsel of their own choice. These attorneys originally thought this point had no merit and perhaps also that it would obscure the better points on which they were endeavoring to procure a hearing here. Of course, after a Justice of this Court had granted Edelman standing to raise the question and indicated that he is impressed by its substantiality, counsel adopted the argument and it became necessary for us to review it. They also shared their time and the counsel table with the Edelman lawyers thus admitted as attorneys-at-large to their case. The lawyers who have ably and courageously fought the Rosenbergs’ battle throughout then listened at this bar to the newly imported counsel make an argument which plainly implied lack of understanding or zeal on the part of the retained counsel. They simply had been elbowed out of the control of their case.

    Every lawyer familiar with the workings of our criminal courts and the habits of our bar will agree that this precedent presents a threat to orderly and responsible representation of accused persons and the right of themselves and their counsel to control their own cases. The lower court refused to accept Edelman’s intrusion but by the order in question must accept him as having standing to take part in, or to take over, the Rosenbergs’ case. That such disorderly intervention is more likely to prejudice than to help the representation of accused persons in highly publicized cases is self-evident. We discountenance this practice.

    Vacating this stay is not to be construed as indorsing the wisdom or appropriateness to this case of a death sentence. That sentence, however, is permitted by law and, as was previously pointed out, is therefore not within this Court’s power of revision. 344 U.S. 889, 890.

    MR. JUSTICE FRANKFURTER, dissenting.

  • Frankfurter begins with a discussion of the technicalities of Douglas’ stay.
  • Painful as it is, I am bound to say that circumstances precluded what to me are indispensable conditions for solid judicial judgment. They precluded me, and now preclude me, from saying that the legal issue that was raised before MR. JUSTICE DOUGLAS was without substance. Let me set forth some of the difficulties that immediately arise upon consideration of that issue.

    The basis on which a jury convicts is authoritatively to be taken from what the judge tells the jury. In this case, the jury’s attention was especially directed to the fact that the charge was a conspiracy to obtain and transmit classified materials pertaining in part to the atomic bomb:

    “Bear in mind — please listen to this, ladies and gentlemen — that the Government contends that the conspiracy was one to obtain not only atomic bomb information, but other secret and classified information; that the information including the report regarding fire-control equipment requested of Elitcher by Sobell or Rosenberg was classified; that the atomic bomb information transmitted by the Rosenbergs was classified as top secret; that based on Rosenberg’s alleged statements to Greenglass, other secret information such as mathematical data on atomic energy for airplanes, information relating to a ‘sky platform’ project and other information was obtained by Julius Rosenberg from scientist contacts in the country.” R. 1557.

    And the indictment charged that the conspiracy continued from 1944 to 1950. Such “averments of time in the indictment are expected and intended to be proved as laid.” Indeed, the judge told the jury: “You must first determine from all the evidence in the case, relating to the period of time defined in the indictment, whether or not a conspiracy existed.” R. 1552. Only one conspiracy could have been found by the jury to have existed, and that was the conspiracy averred in the indictment, a conspiracy continuous from a date certain in 1944 to a date certain in 1950. The Government could of course have charged a conspiracy beginning in 1944 and ending on July 31, 1946, the day before the Atomic Energy Act came into effect. It did not do so. That fact is of decisive importance. The consequences of a conspiracy that was afoot for six years might have been vastly different from those of a conspiracy that terminated within two years, that is, by the time Congress devised legislation to protect atomic energy secrets.

    It is suggested that the overt acts laid in the indictment all occurred before the effective date of the Atomic Energy Act and that hence the indictment did not charge any offense committed after that effective date. But, again, the offense charged in the indictment was a conspiracy, not one or more overt acts. n2 As the judge told the jury, they had to find a conspiracy in order to convict, a conspiracy aimed principally at obtaining atomic secrets and characterized as such by the overt acts alleged, but a conspiracy, I cannot too often repeat, alleged to have been continuous to a date certain in 1950. The Government having tried the Rosenbergs for a conspiracy, continuing from 1944 to 1950, to reveal atomic secrets among other things, it flies in the face of the charge made, the evidence adduced and the basis on which the conviction was secured now to contend that the terminal date of the Rosenberg conspiracy preceded the effective date of the Atomic Energy Act.

    It thus appears — although, of course, I would feel more secure in my conviction had I had the opportunity to make a thorough study of the lengthy record in this case — that the conspiracy with which the Rosenbergs were charged is one falling in part within the terms of the Atomic Energy Act, passed by Congress in 1946 and specifically dealing with classified information pertaining to the recent developments in atomic energy. There remains the question whether the sentence for such a conspiracy could be imposed under the Espionage Act.

    Congress was not content with the penal provisions of the Espionage Act of 1917 to prevent disclosure of atomic energy information. The relevant provisions of the Atomic Energy Act of 1946 differ in several respects from those of the Espionage Act. For one thing the 1946 Act makes possible the death penalty for disclosures in time of peace as well as in war. Some disclosures which fell generally within the Espionage Act now specifically fall under @ 10 of the Atomic Energy Act. The decisive thing in this case is that under the Espionage Act the power to impose a sentence of death was left exclusively to the discretion of the court, while under the Atomic Energy Act a sentence of death can be imposed only upon recommendation of the jury.

    Surely it needs only statement that with such a drastic difference in the authority to take life between the Espionage Act and the Atomic Energy Act, it cannot be left within the discretion of a prosecutor whether the judge may impose the death sentence wholly on his own authority or whether he may do so only upon recommendation of the jury. Nothing can rest on the prosecutor’s caprice in placing on the indictment the label of the 1917 Act or of the 1946 Act. To seek demonstration of such an absurdity, in defiance of our whole conception of impersonality in the criminal law, would be an exercise in self-stultification. The indorsement of an indictment, the theory under which the prosecutor is operating, his belief or error as to the statute which supports an indictment or under which sentences may be imposed, are all wholly immaterial.

    These considerations — the fact that Congress and not the whim of the prosecutor fixes sentences, that the allegations of an indictment are to be judged by the relevant statute under which punishment may be meted out and not by the design of the prosecutor or the assumption of the trial court — cut across all the talk about repeal by implication and other empty generalities on statutory construction. Congress does not have to say in so many words that hereafter a judge cannot without jury recommendation impose a sentence of death on a charge of conspiracy that falls within the Atomic Energy Act. It is enough if in fact Congress has provided that hereafter such a death sentence is to depend on the will of the jury.

  • Frankfurter than argues that there wasn’t time to fully consider the Rosenbergs’ appeal on the Atomic Energy Act grounds.
  • To be writing an opinion in a case affecting two lives after the curtain has been rung down upon them has the appearance of pathetic futility. But history also has its claims. This case is an incident in the long and unending effort to develop and enforce justice according to law. The progress in that struggle surely depends on searching analysis of the past, though the past cannot be recalled, as illumination for the future. Only by sturdy self-examination and self-criticism can the necessary habits for detached and wise judgment be established and fortified so as to become effective when the judicial process is again subjected to stress and strain.

    American criminal procedure has its defects, though its essentials have behind them the vindication of long history. But all systems of law, however wise, are administered through men and therefore may occasionally disclose the frailties of men. Perfection may not be demanded of law, but the capacity to counteract inevitable, though rare, frailties is the mark of a civilized legal mechanism.

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