ACLU-Approved Dictatorship

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Recently by Justin Raimondo: Showing the President Who’s Boss

As libertarians know, and most of the rest of us suspect, government lies are as ubiquitous as the air we breathe, and the higher up we go the bigger the deception. Most of the time, we get the truth — if we get it — from whistleblowers, or renegade journalists, but the most recent case of truth-telling comes from Acting Solicitor General Neal Katyal, as the Los Angeles Times reports:

“In an extraordinary admission of misconduct, [Katyal] took to task one of his predecessors for hiding evidence and deceiving the Supreme Court in two of the major cases in its history: the World War II rulings that upheld the detention of more than 110,000 Japanese Americans.

"Katyal said Tuesday that Charles Fahy, an appointee of President Franklin D. Roosevelt, deliberately hid from the court a report from the Office of Naval Intelligence that concluded the Japanese Americans on the West Coast did not pose a military threat. The report indicated there was no evidence Japanese Americans were disloyal, were acting as spies or were signaling enemy submarines, as some at the time had suggested.”

Fahy suppressed a report from the Office of Naval Intelligence which denied Japanese-Americans represented a security threat, and maintained that those who did were either already in custody or else known to the authorities. Fahy, on the other hand, believed there was no way to differentiate between the loyal and the disloyal, and said Japanese living in the US were motivated by “racial solidarity.” This comment clearly characterizes Fahy as an inveterate racist, a reactionary, and a Very Bad Person with nativist inclinations — except that Fahy was hardly a know-nothing type. In fact, he was one of Franklin Delano Roosevelt’s legal liberals, a former head of the National Labor Relations Board (NLRB) legal department, whose reputation as a “legal craftsman” — i.e. one who stuck to the letter of the law, and avoided broader policy questions — was well-established.

After the war, when President Truman issued a presidential order desegregating the armed forces, he appointed Fahy the head of a committee to implement the desegregation process, which was being fought tooth and nail by military commanders, especially in the army. Fahy — the former enemy of Japanese “racial solidarity” — diligently pursued Truman’s desegregation order.

The liberal-lefty lawyers who worked for FDR’s Justice Department were split on the constitutionality of the internment order, and many were inclined to argue for it in court based on narrow legal arguments. Yet Fahy was part of a hard-line faction within the Roosevelt and Truman administrations that deferred to the War Department and insisted on ferociously defending the federal government’s position when the internments were challenged in court. As Solicitor General, Fahy also zealously prosecuted the federal government’s case against alleged “seditionists” whose “crimes” consisted of writing articles and pamphlets that supposedly were aimed at “causing insubordination in the armed forces” of the US in wartime.

Under Fahy’s direction, the defense of internment was argued in terms that prefigured the arguments made sixty years later by George W. Bush’s legal eagles, who maintained that the various infringements on the traditional constitutional rights enjoyed by all Americans were overridden by the President’s supreme authority as commander-in-chief. Powers given the chief executive in wartime, argued Fahy’s legal team, gave the Roosevelt administration the authority to imprison anyone, including American citizens, for any reason deemed militarily necessary. And so we see that the PATRIOT Act, the Military Commissions Act, and other such unconstitutional legislation that has the Founders turning over in their graves, have ample precedent — thanks to the “progressive” legal legacy left to us by FDR.

If the government’s own lawyers were split on the internment question, then so, too, was the other side, represented by the American Civil Liberties Union (ACLU). When the internment order was announced, the pro-civil liberties faction of the ACLU proposed a resolution to the governing board that would have gotten the ACLU involved in court challenges based on the premise that the order was clearly in violation of the Constitution, and impermissible in a free society.

Supporters of the administration mobilized within the ACLU, and drafted a counter-resolution which granted the government the right to intern “enemy aliens,” including US citizens, in the name of “national security,” and proposed taking on only those cases in which no clear “reasonable” basis for internment could be proved. This was, in effect, the Justice Department’s position. In the end, the anti-civil libertarians — including commie Corliss Lamont, lefty loudmouth Max Lerner, and the literary critic and Stalin apologist Van Wyck Brooks — prevailed. (See Peter H. Irons’ Justice At War for the full list of ACLU hypocrites.)

Roger Baldwin, ACLU chairman, was instructed by the ACLU Board that “local committees are not free to sponsor cases in which the position taken is that the government has no constitutional right to remove citizens from military areas.” The only grounds ACLU lawyers were permitted to argue the case were that the internment order constituted “racial discrimination.” Thus began the ACLU’s abandonment of strict adherence to the Constitution and its drift toward political correctness: outright authoritarianism propelled by rampant militarism was perfectly fine by them, as long as there was no “racism” involved.

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Justin Raimondo [send him mail] is editorial director of and is the author of An Enemy of the State: The Life of Murray N. Rothbard and Reclaiming the American Right: The Lost Legacy of the Conservative Movement.

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