Evening star., 1948-07-04
Constitutional Questions
Caused Court Dishurmony
Alien Enemy Case Brought Total
OF Dissents to 6 Per Cent
Rp Gerard D. Reilly

OF Dissents to o0 Per Cent
By Gerard D. Reilly
The lack Of unaninity which has become
characteristic Of the Supreme Court in recent
years continued as strongly ~ ever IN the
term which ended last month. Sixty-six per
cent Of the decisions handed down involved
dissenting votes as compared with 81 per cent
for the 1867 term. In the vast majority Of
cases in which the court was split the decisions
involved constitutional questions or recent acts
Of Congress which had never been authorita.
lively construed before. ~
One of the sharpest divisions at the very
close Of the term, however, occurred over an
act Of Congress which was $50 years old. This
was the application of the Alien Enemy Act
Of 1898, passed during the administration Of
John Adams, to the deportation Of some $50
aliens who were arrested and kept In detention
shortly after the outbreak Of hostiities with
Japan and Germany.
The case upon which the court passed re-
lated to q petition for review nled by Kurt
Ludecke, = former oflcial Of the Nazi Party
who had q falling out with rival Mani leaders
in 1884 when Ernest Roehm, Gregor Strasser
and other storm troopers were executed by
orders Of the party. Ludecke was sent to
concentration camp. escaped after q few
months and came to this country where he
published a book called II Knew Hitler-thel
Story OF = Nazi Who Escaped the Blood Purge"
During the week in which war broke out he
had been picked up by the Justice Department
and interned pursuant to presidential procla-
nation issued under the authority Of the old
Alien Enemy Act which gave the President
power in the event of a declared war or "any
invasion of predatory incursion" to have all
citizens OF the hostile nation above the age Of
IA "apprehended, restrained, secured and re-
moved as alien enemies" After the German
armistice the President issued another procla-
nation directing the removal from the United
States Of all alien enemies deemed by the
Attorney General to be dangerous to the public
peace and safety" 1t was in accordance with
the terms of this proclamation that Ludecks
in January, 1916, was ordered repatriated to
Germany by the Attorney General d
Ludecke thereupon applied to 4 Federal dis
trict court for = writ Of habeas corpus. This
was denied Aim. In asking the Supreme Court
to reverse this decision, he argued % that the
Presidents powers under the 1898 act had
expired with the cessation Of hostilites and (2)
that In any event the absence In the act Of
any requirement for a hearing deprived him Of
due process.
Mr.. Justice Frankfurter, speaking for the ma.
jority, rejected both contentious. The statute.
he said, did not lose its effectiveness when the
shooting stopped. He held that the duty of
deciding when the war was oficially terminated
rested not with the courts but with the
political departments of government. He re-
ferred to decision of the Supreme Court in
1919 in which wartime prohibition was upheld
even though an armistice had been concluded.
the court declaring that state Of war con-
tinued to exist until peace treaties were signed.
Mr.. Justice Black disagreed with this view,
writing . dissent in which he was joined by
Justices Rutledge, Douglas and Murphy. A
more bitter disagreement, however, was voiced
by Mr.. Justice Douglas to the majority view
that because the statute did not require any
hearing, an alien enemy could not complain Of
the character Of the hearing that he did not
receive. The dissenting justices contended that
the Constitution required that the hearing be
fair one and that "a mock hearing should
not be defended on the ground that 1t was .
mere gratuity. Consequently they contended
that the writ OF habeas corpus should have been
granted to protect the rights Of petitioner.
As matter Of fact the procedure devised
by Attorneys General Biddle and Clark in the
alien enemy cases had been meticulous. But
because the Justice Department apparently
desired decision sustaining its broad position.
Government attorneys did not contend in court
that Ludecke had been accorded . fair hearing.
The record OF the case, however, reveals that
the Government in handling the alien enemy
problem during this past war had earnestly
striven to avoid miscarriages of justice.
While the aliens who were first interned
were selected on the basis Of information in
the possession Of the Federal Bureau OF In
vestigation, they were not taken into custody
until this Information was reviewed by the
Attorney Generals immediate subordinates
and presidential writs had been signed
When the proclamation authorizing deporta-
ton of those regarded as dangerous was issued
after the German surrender, the Attorney
General designated a board consisting OF three
ranking officers In the alien enemy control
unit which held hearings at which all the
prisoners selected for repatriation were per-
mitted to appear. At these hearings inquiry
was made as to whether the aliens, whose de-
portation was proposed, still adhered to or were
closely afiliated with the Naz Party. Even
when such connections were established by the
evidence, the repatriation board recommended
clemency If the alien was q man Of advanced
years. In failing health or had an American
wife or children.
stenographic transcripts were taken Of these
hearings and written findings were made by
the board In each case In which the findings
were adverse to the alien the matter was per-
sonally reviewed by an executive assistant TO
the Attorney General before the latter acted
upon the recommendation. After these orders
were signed the cases were subjected to the
scrutiny Of tn amnesty board on which for
mer Associate Justice Owen Roberts served as
chairman. number Of hardship cases were
eliminated by this process and the files of the
men awaiting deportation were recently re-
viewed again by the Solicitor General.
It is apparent that the regard for the civil
rights Of aliens displayed in the Biddle-Clark
regulations compares favorably with the record
of Attorney General Mitchell Palmer In the
postwar period Of 1890. At that time JUS
tice Department agents rounded up thousands
OF aliens suspected OF being subversive pur-